§ 22 — Appeals and fair hearings; judicial review

New York § 22

• Jurisdiction: New York
• Law SOS: Social Services
• Art. 2: Department and State Board of Social Welfare

Text

§ 22. Appeals and fair hearings; judicial review. 1. Any person\ndescribed in subdivision three of this section, or any individual\nauthorized to act on behalf of any such person, may appeal to the\ndepartment from decisions of social services officials or failures to\nmake decisions upon grounds specified in subdivision five of this\nsection. The department shall review the case and give such person an\nopportunity for a fair hearing thereon. The department may also, on its\nown motion, review any decision made or any case in which a decision has\nnot been made by a social services official within the time specified by\nlaw or regulations of the department. The department may make such\nadditional investigation as it may deem necessary, and the commissioner\nshall make such decision as is justified and is in conformity with the\nprovisions of this chapter, the regulations of the department, a\ncomprehensive annual services program plan then in effect pursuant to\ntitle twenty of the federal social security act and any other applicable\nprovisions of law.\n 2. In connection with any appeal pursuant to this section, with or\nwithout a fair hearing, the commissioner may designate and authorize one\nor more appropriate members of his staff to consider and decide such\nappeals. Any staff member so designated and authorized shall have\nauthority to decide such appeals on behalf of the commissioner with the\nsame force and effect as if the commissioner had made the decisions.\nFair hearings held in connection with such appeals shall be held on\nbehalf of the commissioner by members of his staff who are employed for\nsuch purposes or who have been designated and authorized by him\ntherefor. The provisions of this subdivision shall apply to fair\nhearings conducted pursuant to subdivision eight of section four hundred\ntwenty-two of this chapter, and to any hearing required pursuant to this\nchapter concerning the denial, suspension or revocation of any permit,\ncertificate or license, and to any hearing held pursuant to section four\nhundred fifty-five of this chapter.\n * 2-a. With regard to fair hearings held in connection with appeals\nfor integrated fair hearing and appeals processes for individuals dually\neligible for medical assistance and benefits available under titles\nXVIII and XIX of the federal social security act, the commissioner may\ncontract for the sole purpose of assisting staff of the office for such\npurpose.\n * NB Expires January 1, 2028\n 3. Persons entitled to appeal to the department pursuant to this\nsection shall include:\n (a) Applicants for or recipients of aid to dependent children,\nemergency assistance for families with dependent children, home relief,\nveteran assistance, medical assistance for needy persons and any service\nauthorized or required to be made available in the geographic area in\nwhich such person resides, pursuant to the provisions of this chapter;\n (b) Applicants for or participants in the food stamp program, pursuant\nto section ninety-five of this chapter and regulations of the\ndepartment;\n (c) Applicants for or recipients of emergency assistance for aged,\nblind and disabled persons, pursuant to title eight of article five of\nthis chapter, so long as such emergency assistance is available pursuant\nto such law;\n (d) Aggrieved persons described in section four hundred of this\nchapter;\n * (e) Aggrieved persons, agencies or social services districts\ndescribed in section three hundred seventy-two-e of this chapter;\n * NB Effective until June 30, 2027\n * (e) Aggrieved persons, agencies or social services districts\ndescribed in sections one hundred fifty-three-d, three hundred\nseventy-two-e and three hundred ninety-eight-b of this chapter;\n * NB Effective June 30, 2027\n (f) Unless an agreement is in effect for federal administration of\nadditional state payments pursuant to section two hundred eleven of this\nchapter, applicants for and recipients of additional state payments as\ndefined in subdivision two of section two hundred eight of this chapter;\nand\n (g) Other persons entitled to an opportunity for fair hearings\npursuant to regulations of the department.\n 4. (a) Except as provided in paragraph (c) of subdivision two of\nsection four hundred twenty-four-a of this chapter and in paragraph (b)\nof this subdivision, any appeal pursuant to this section must be\nrequested within sixty days after the date of the action or failure to\nact complained of.\n (b) Unless a different period is mandated by federal law or\nregulations, a person is allowed to request a fair hearing on any action\nof a social services district relating to food stamp benefits or loss of\nfood stamp benefits which occurred in the ninety days preceding the\nrequest for a hearing. For purposes of this paragraph, such action\nincludes a denial of a request for restoration of any benefits lost more\nthan ninety days but less than a year prior to the request. In addition,\nat any time within the period for which a person is certified to receive\nfood stamp benefits, such person may request a fair hearing to dispute\nthe current level of benefits.\n 5. Grounds for such appeals shall be specified in regulations of the\ndepartment, but shall include at least the following:\n (a) Denial of any application.\n (b) Failure to act upon any application within thirty days after\nfiling, except applications for home relief, or failure to comply with\nlaws and regulations requiring that priority be given to certain\napplications for assistance, or failure to act on any application for\nhome relief within forty-five days after filing.\n (c) Inadequacy in amount or manner of payment of assistance.\n (d) Discontinuance in whole or in part of assistance, or termination\nof a service authorized or required to be made available pursuant to the\ncomprehensive annual services program plan then in effect.\n (e) Failure to permit a parent or guardian to visit the child or\nfailure to provide supportive services, which shall include preventive\nand other supportive services authorized to be provided pursuant to the\nstate consolidated services plan, to the child and to the parent or\nguardian, pursuant to an instrument executed under section three hundred\neighty-four-a of this chapter.\n (f) Failure to provide adoption services or assistance to a\nprospective adoptive parent on behalf of a child freed for adoption as\ndefined in subdivision (b) of section one thousand eighty-seven of the\nfamily court act pursuant to section three hundred seventy-two-b of this\nchapter and the local social services district's consolidated services\nplan.\n 6. In scheduling fair hearings on appeals concerning applications for\nemergency assistance pursuant to section three hundred fifty-j or title\neight of article five of this chapter, the department shall give\npriority to the hearing and determination of such appeals.\n 7. For the purposes of this section, except subdivision nine, social\nservices officials shall include the persons described in subdivision\nfourteen of section two of this chapter and also the head of any bureau\nof the department which exercises responsibility pursuant to this\nchapter for determining eligibility for and furnishing public assistance\nand care to persons in family care pursuant to section one hundred\nthirty-eight-a of this chapter, or for determining eligibility for and\nfurnishing medical assistance pursuant to subdivision two, three or four\nof section three hundred sixty-five of this chapter, or for determining\neligibility for and furnishing services pursuant to section two hundred\nfifty-three of this chapter.\n 8. The department shall promulgate such regulations, not inconsistent\nwith federal or state law, as may be necessary to implement the\nprovisions of this section. Such regulations shall require that a copy\nof all decisions made concerning appeals pursuant to this section shall\nbe sent to each party to such appeals and their representatives, if any.\n 9. (a) All decisions of the commissioner pursuant to this section\nshall be binding upon the social services districts involved and shall\nbe complied with by the social services officials thereof.\n (b) Any aggrieved party to an appeal, including a social services\nofficial provided an application by any such social services official\nhas not been determined by any federal agency to be in violation of\nfederal law, may apply for review as provided in article seventy-eight\nof the civil practice law and rules.\n (c) The provisions of paragraph (a) shall be applicable to a social\nservices official after the decision of the commissioner becomes final\nand binding unless a court stays such decision. No such stay shall be\nissued by any court unless the social services official establishes that\nirreputable harm will result if a stay is not granted, and the\nprobability that he will succeed on the merits. In an action or\nproceeding to review a decision of the commissioner, the applicant or\nrecipient and his representative, if any, shall be served with copies of\nall pleadings and shall be allowed to intervene in such action or\nproceeding as a matter of right. Notwithstanding any provision of the\ncivil practice law and rules or any other law to the contrary, any\napplication by a social services official for a stay in a proceeding\ncommenced by such official pursuant to this section shall be determined\nby the appropriate appellate division, and not by a justice of the\nsupreme court. Whenever the commissioner has sustained an appeal by a\nrecipient of public assistance or care with respect to benefits which\nwere continued pending the fair hearing decision, the appellate division\nshall not stay the fair hearing decision prior to the initial\ndetermination of the proceeding initiated pursuant to this section for\nthe review of such fair hearing decision.\n (d) Every person entitled to a benefit pursuant to a decision of the\ncommissioner under this section, shall be advised to contact the\ndepartment in a manner specified by department regulations, in the event\nthat a local social services district does not comply with such\ndecision.\n 10. In connection with every determination of an appeal pursuant to\nthis section, the department shall inform every party thereto, and his\nrepresentative, if any, of the availability of judicial review and the\ntime limitation thereon.\n 11. The provisions of subdivisions three and four of section twenty of\nthis chapter shall be applicable to state reimbursement otherwise\npayable to any social services district in the event of the failure of a\nsocial services official to comply with a commissioner's determination\nupon an appeal within the time required by regulations of the department\nor such additional time as the commissioner may allow. In the event that\nthe court stays any such determination in a proceeding pursuant to\narticle seventy-eight of the civil practice law and rules, state\nreimbursement shall not be withheld or denied pursuant to this\nsubdivision for non-compliance during such stay. Nothing in this\nsubdivision shall limit the power of a court in a proceeding pursuant to\narticle seventy-eight of the civil practice law and rules to order a\nsocial services official to comply with a commissioner's determination\nupon an appeal.\n 12. Every applicant or recipient of public assistance and care shall\nbe informed in writing, through the distribution of an informational\npamphlet, at the time of application and at the time of any action\naffecting his receipt of assistance or care:\n (a) of his right to an appeal or fair hearing;\n (b) of the method by which he may obtain an appeal or fair hearing;\n (c) of his right to representation by legal counsel, or by a relative,\nfriend, or other spokesmen, or that he may represent himself;\n (d) of the availability of community legal services to assist him in\nthe appeal or fair hearings process;\n (e) of the nature of the precedures to be followed throughout an\nappeal or fair hearing;\n (f) of the types of information he may wish to submit at an appeal or\nfair hearing;\n (g) of any additional information which would clarify the appeals and\nfair hearings procedure for applicants and recipients of public\nassistance and care, and would assist such persons in more adequate\npreparation for such hearings.\n 13. Whenever under other provisions of this chapter an applicant or\nrecipient of public assistance or care may appeal to the department a\ndecision of a social services official, or the failure of such official\nto act on his application within the required period, and may request a\nfair hearing thereon, if such applicant or recipient requires legal\nservices in connection with such an appeal and fair hearing and such\nservices are not otherwise available to him, the social services\nofficial shall, upon request, make provision for payment for such legal\nservices if required by federal law or regulations.\n 14. To provide an analysis of the outcome of the fair hearings process\nwithin the office of temporary and disability assistance to identify\ninadequacies and potential improvements in the functioning of the fair\nhearings system, such office shall prepare for inclusion in the annual\nreport required by subdivision (d) of section seventeen of this article\nto be filed with the governor and the legislature prior to the fifteenth\nday of December of each year, a report containing with respect to income\nmaintenance programs, including the family assistance program, the\nsafety net assistance program, the medical assistance program and any\nother program, the number of affirmations and reversals by local\ndistricts and by program including a breakdown by local districts of the\nnumber of fair hearings requested by program and the number of fair\nhearings held by program, formal requests by local districts and\nrecipients for reconsideration or rehearing of appeals, and a summary of\ncourt actions on hearing decisions.\n