N.Y. Social Services Law § 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.

* 2-a. With regard to fair hearings held in connection with appeals

for integrated fair hearing and appeals processes for individuals dually

eligible for medical assistance and benefits available under titles

XVIII and XIX of the federal social security act, the commissioner may

contract for the sole purpose of assisting staff of the office for such

purpose.

* NB Expires January 1, 2028

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, 2027

* (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, 2027

(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.