2012 New York Consolidated Laws
SOS - Social Services
Article 2 - (5 - 40) DEPARTMENT AND STATE BOARD OF SOCIAL WELFARE
22 - Appeals and fair hearings; judicial review.

 
    §  22.  Appeals  and  fair  hearings;  judicial  review. 1. Any person
  described in subdivision  three  of  this  section,  or  any  individual
  authorized  to  act  on  behalf  of  any  such person, may appeal to the
  department from decisions of social services officials  or  failures  to
  make  decisions  upon  grounds  specified  in  subdivision  five of this
  section. The department shall review the case and give  such  person  an
  opportunity  for a fair hearing thereon. The department may also, on its
  own motion, review any decision made or any case in which a decision has
  not been made by a social services official within the time specified by
  law or regulations of the  department.  The  department  may  make  such
  additional  investigation as it may deem necessary, and the commissioner
  shall make such decision as is justified and is in conformity  with  the
  provisions  of  this  chapter,  the  regulations  of  the  department, a
  comprehensive annual services program plan then in  effect  pursuant  to
  title twenty of the federal social security act and any other applicable
  provisions of law.
    2.  In  connection  with  any appeal pursuant to this section, with or
  without a fair hearing, the commissioner may designate and authorize one
  or more appropriate members of his staff to  consider  and  decide  such
  appeals.  Any  staff  member  so  designated  and  authorized shall have
  authority to decide such appeals on behalf of the commissioner with  the
  same  force  and  effect  as if the commissioner had made the decisions.
  Fair hearings held in connection with such  appeals  shall  be  held  on
  behalf  of the commissioner by members of his staff who are employed for
  such purposes  or  who  have  been  designated  and  authorized  by  him
  therefor.  The  provisions  of  this  subdivision  shall  apply  to fair
  hearings conducted pursuant to subdivision eight of section four hundred
  twenty-two of this chapter, and to any hearing required pursuant to this
  chapter concerning the denial, suspension or revocation of  any  permit,
  certificate or license, and to any hearing held pursuant to section four
  hundred fifty-five of this chapter.
    3.  Persons  entitled  to  appeal  to  the department pursuant to this
  section shall include:
    (a) Applicants  for  or  recipients  of  aid  to  dependent  children,
  emergency  assistance for families with dependent children, home relief,
  veteran assistance, medical assistance for needy persons and any service
  authorized or required to be made available in the  geographic  area  in
  which such person resides, pursuant to the provisions of this chapter;
    (b) Applicants for or participants in the food stamp program, pursuant
  to   section   ninety-five  of  this  chapter  and  regulations  of  the
  department;
    (c) Applicants for or recipients of  emergency  assistance  for  aged,
  blind  and  disabled persons, pursuant to title eight of article five of
  this chapter, so long as such emergency assistance is available pursuant
  to such law;
    (d) Aggrieved persons  described  in  section  four  hundred  of  this
  chapter;
    * (e)   Aggrieved  persons,  agencies  or  social  services  districts
  described in section three hundred seventy-two-e of this chapter;
    * NB Effective until June 30, 2017
    * (e)  Aggrieved  persons,  agencies  or  social  services   districts
  described   in   sections   one  hundred  fifty-three-d,  three  hundred
  seventy-two-e and three hundred ninety-eight-b of this chapter;
    * NB Effective June 30, 2017
    (f) Unless an agreement is in effect  for  federal  administration  of
  additional state payments pursuant to section two hundred eleven of this
  chapter,  applicants  for and recipients of additional state payments as

  defined in subdivision two of section two hundred eight of this chapter;
  and
    (g)  Other  persons  entitled  to  an  opportunity  for  fair hearings
  pursuant to regulations of the department.
    4. (a) Except as provided in  paragraph  (c)  of  subdivision  two  of
  section  four hundred twenty-four-a of this chapter and in paragraph (b)
  of this subdivision,  any  appeal  pursuant  to  this  section  must  be
  requested  within  sixty days after the date of the action or failure to
  act complained of.
    (b)  Unless  a  different  period  is  mandated  by  federal  law   or
  regulations, a person is allowed to request a fair hearing on any action
  of a social services district relating to food stamp benefits or loss of
  food  stamp  benefits  which  occurred  in the ninety days preceding the
  request for a hearing. For  purposes  of  this  paragraph,  such  action
  includes a denial of a request for restoration of any benefits lost more
  than ninety days but less than a year prior to the request. In addition,
  at any time within the period for which a person is certified to receive
  food  stamp  benefits, such person may request a fair hearing to dispute
  the current level of benefits.
    5. Grounds for such appeals shall be specified in regulations  of  the
  department, but shall include at least the following:
    (a) Denial of any application.
    (b)  Failure  to  act  upon  any  application within thirty days after
  filing, except applications for home relief, or failure to  comply  with
  laws  and  regulations  requiring  that  priority  be  given  to certain
  applications for assistance, or failure to act on  any  application  for
  home relief within forty-five days after filing.
    (c) Inadequacy in amount or manner of payment of assistance.
    (d)  Discontinuance  in whole or in part of assistance, or termination
  of a service authorized or required to be made available pursuant to the
  comprehensive annual services program plan then in effect.
    (e) Failure to permit a parent or  guardian  to  visit  the  child  or
  failure  to  provide supportive services, which shall include preventive
  and other supportive services authorized to be provided pursuant to  the
  state  consolidated  services  plan,  to  the child and to the parent or
  guardian, pursuant to an instrument executed under section three hundred
  eighty-four-a of this chapter.
    (f)  Failure  to  provide  adoption  services  or  assistance   to   a
  prospective  adoptive  parent on behalf of a child freed for adoption as
  defined in subdivision (b) of section one thousand eighty-seven  of  the
  family court act pursuant to section three hundred seventy-two-b of this
  chapter  and  the local social services district's consolidated services
  plan.
    6. In scheduling fair hearings on appeals concerning applications  for
  emergency  assistance pursuant to section three hundred fifty-j or title
  eight of article  five  of  this  chapter,  the  department  shall  give
  priority to the hearing and determination of such appeals.
    7.  For  the purposes of this section, except subdivision nine, social
  services officials shall include the persons  described  in  subdivision
  fourteen  of section two of this chapter and also the head of any bureau
  of the  department  which  exercises  responsibility  pursuant  to  this
  chapter for determining eligibility for and furnishing public assistance
  and  care  to  persons  in  family  care pursuant to section one hundred
  thirty-eight-a of this chapter, or for determining eligibility  for  and
  furnishing medical assistance pursuant to subdivision two, three or four
  of  section three hundred sixty-five of this chapter, or for determining
  eligibility for and furnishing services pursuant to section two  hundred
  fifty-three of this chapter.

    8.  The department shall promulgate such regulations, not inconsistent
  with federal or  state  law,  as  may  be  necessary  to  implement  the
  provisions  of  this section. Such regulations shall require that a copy
  of all decisions made concerning appeals pursuant to this section  shall
  be sent to each party to such appeals and their representatives, if any.
    9.  (a)  All  decisions  of  the commissioner pursuant to this section
  shall be binding upon the social services districts involved  and  shall
  be complied with by the social services officials thereof.
    (b)  Any  aggrieved  party  to  an appeal, including a social services
  official provided an application by any such  social  services  official
  has  not  been  determined  by  any federal agency to be in violation of
  federal law, may apply for review as provided in  article  seventy-eight
  of the civil practice law and rules.
    (c)  The  provisions  of paragraph (a) shall be applicable to a social
  services official after the decision of the commissioner  becomes  final
  and  binding  unless  a court stays such decision. No such stay shall be
  issued by any court unless the social services official establishes that
  irreputable harm  will  result  if  a  stay  is  not  granted,  and  the
  probability  that  he  will  succeed  on  the  merits.  In  an action or
  proceeding to review a decision of the commissioner,  the  applicant  or
  recipient and his representative, if any, shall be served with copies of
  all  pleadings  and  shall  be  allowed  to  intervene in such action or
  proceeding as a matter of right. Notwithstanding any  provision  of  the
  civil  practice  law  and  rules  or  any other law to the contrary, any
  application by a social services official for a  stay  in  a  proceeding
  commenced  by such official pursuant to this section shall be determined
  by the appropriate appellate division, and  not  by  a  justice  of  the
  supreme  court.  Whenever  the commissioner has sustained an appeal by a
  recipient of public assistance or care with respect  to  benefits  which
  were continued pending the fair hearing decision, the appellate division
  shall   not  stay  the  fair  hearing  decision  prior  to  the  initial
  determination of the proceeding initiated pursuant to this  section  for
  the review of such fair hearing decision.
    (d)  Every  person entitled to a benefit pursuant to a decision of the
  commissioner under  this  section,  shall  be  advised  to  contact  the
  department in a manner specified by department regulations, in the event
  that  a  local  social  services  district  does  not  comply  with such
  decision.
    10. In connection with every determination of an  appeal  pursuant  to
  this  section,  the department shall inform every party thereto, and his
  representative, if any, of the availability of judicial review  and  the
  time limitation thereon.
    11. The provisions of subdivisions three and four of section twenty of
  this  chapter  shall  be  applicable  to  state  reimbursement otherwise
  payable to any social services district in the event of the failure of a
  social services official to comply with a  commissioner's  determination
  upon an appeal within the time required by regulations of the department
  or such additional time as the commissioner may allow. In the event that
  the  court  stays  any  such  determination  in a proceeding pursuant to
  article seventy-eight  of  the  civil  practice  law  and  rules,  state
  reimbursement   shall  not  be  withheld  or  denied  pursuant  to  this
  subdivision  for  non-compliance  during  such  stay.  Nothing  in  this
  subdivision shall limit the power of a court in a proceeding pursuant to
  article  seventy-eight  of  the  civil practice law and rules to order a
  social services official to comply with a  commissioner's  determination
  upon an appeal.
    12.  Every  applicant or recipient of public assistance and care shall
  be informed in writing, through the  distribution  of  an  informational

  pamphlet,  at  the  time  of  application  and at the time of any action
  affecting his receipt of assistance or care:
    (a) of his right to an appeal or fair hearing;
    (b) of the method by which he may obtain an appeal or fair hearing;
    (c) of his right to representation by legal counsel, or by a relative,
  friend, or other spokesmen, or that he may represent himself;
    (d)  of  the availability of community legal services to assist him in
  the appeal or fair hearings process;
    (e) of the nature of the  precedures  to  be  followed  throughout  an
  appeal or fair hearing;
    (f)  of the types of information he may wish to submit at an appeal or
  fair hearing;
    (g) of any additional information which would clarify the appeals  and
  fair   hearings  procedure  for  applicants  and  recipients  of  public
  assistance and care, and would assist  such  persons  in  more  adequate
  preparation for such hearings.
    13.  Whenever  under  other provisions of this chapter an applicant or
  recipient of public assistance or care may appeal to  the  department  a
  decision  of a social services official, or the failure of such official
  to act on his application within the required period, and may request  a
  fair  hearing  thereon,  if  such  applicant or recipient requires legal
  services in connection with such an appeal and  fair  hearing  and  such
  services  are  not  otherwise  available  to  him,  the  social services
  official shall, upon request, make provision for payment for such  legal
  services if required by federal law or regulations.
    14. To provide an analysis of the outcome of the fair hearings process
  within  the  office  of  temporary and disability assistance to identify
  inadequacies and potential improvements in the functioning of  the  fair
  hearings  system,  such office shall prepare for inclusion in the annual
  report required by subdivision (d) of section seventeen of this  article
  to be filed with the governor and the legislature prior to the fifteenth
  day of December of each year, a report containing with respect to income
  maintenance  programs,  including  the  family  assistance  program, the
  safety net assistance program, the medical assistance  program  and  any
  other  program,  the  number  of  affirmations  and  reversals  by local
  districts and by program including a breakdown by local districts of the
  number of fair hearings requested by program  and  the  number  of  fair
  hearings  held  by  program,  formal  requests  by  local  districts and
  recipients for reconsideration or rehearing of appeals, and a summary of
  court actions on hearing decisions.