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This entry was published on 2022-04-15
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SECTION 22
Appeals and fair hearings; judicial review
Social Services (SOS) CHAPTER 55, ARTICLE 2
§ 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, 2024

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.