NY Soc Serv L § 22 (2021)
2021 New York Laws SOS - Social Services Article 2 - 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.   * 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, 2022    * (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, 2022  (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.