PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following proposed rule:
Proposed Action:
Amendment of section 358-5.5 of Title 18 NYCRR.
Statutory authority:
Social Services Law, sections 20(3)(d), 22(8) and 34(3)(f)
Subject:
Fair Hearings Process.
Purpose:
Amend fair hearings regulations to remove the time frames within which an Appellant or an Appellant's authorized representative must request that a defaulted fair hearing be rescheduled.
Text of proposed rule:
Section 358-5.5 of Title 18 NYCRR is amended to read as follows:
§ 358-5.5 Abandonment of a request for a fair hearing.
(a) OAH will consider a fair hearing request abandoned if neither the appellant nor appellant's authorized representative appears at the fair hearing unless either the appellant or appellant's authorized representative has:
(1) contacted OAH [within 15 days of the scheduled date of the fair hearing] to request that the fair hearing be rescheduled; and
(2) provided OAH with a good cause reason for failing to appear at the fair hearing on the scheduled date[; or
(3) contacted OAH within 45 days of the scheduled date of the hearing and establishes that the appellant did not receive the notice of fair hearing prior to the scheduled hearing date].
(b) OAH will restore a case to the calendar if the appellant or appellant's authorized representative has met the requirements of subdivision (a) of this section.
Text of proposed rule and any required statements and analyses may be obtained from:
Jeanine Stander Behuniak, New York State Office of Temporary and Disability Assistance, 40 North Pearl Street, 16C, Albany, New York 12243-0001, (518) 474-9779, email: Jeanine.Behuniak@OTDA.state.ny.us
Data, views or arguments may be submitted to:
Same as above.
Public comment will be received until:
45 days after publication of this notice.
Regulatory Impact Statement
1. Statutory authority:
Social Services Law (SSL) § 20(3)(d) authorizes the Office of Temporary and Disability Assistance (OTDA) to promulgate regulations to carry out its powers and duties.
SSL § 22(8) requires OTDA to promulgate regulations as may be necessary to administer its fair hearings process.
SSL § 34(3)(f) requires the Commissioner of OTDA to establish regulations for the administration of public assistance and care within the State.
2. Legislative objectives:
It was the intent of the Legislature in enacting the above statutes that OTDA establish rules in order to assure that the due process rights of applicants for and recipients of public assistance, medical assistance, food stamps and services are adequately protected. Furthermore, these statutes give OTDA the authority to promulgate regulations concerning the administration of the fair hearings process.
3. Needs and benefits:
The regulations governing the fair hearings process for public assistance, medical assistance, food stamps and services are generally contained in 18 NYCRR Part 358. This instant regulatory change is in response to a case titled, Donald Johnson v. Elizabeth R. Berlin, et ano, Sup. Ct. New York County (400081/10). While the current regulations protect the rights of individuals who ask for hearings (the "Appellants"), the goal of this change is to ensure that the due process rights of Appellants are protected in instances where they have good cause reasons for not attending their scheduled fair hearings. The substantive change, specifically to 18 NYCRR § 358-5.5, would remove the time frames within which an Appellant or an Appellant's authorized representative is to request that a fair hearing be rescheduled. The criteria for reviewing an Appellant's reason for missing the scheduled hearing would be whether the Appellant has established good cause for missing the hearing. What constitutes good cause would be determined on a case by case basis and would be relative to the individual circumstances of the particular Appellant. This means that the Appellant's time frame to contact OTDA's Office of Administrative Hearings would be determined by the Appellant's good cause reason, and timeliness would be a factor to be considered in such determination.
4. Costs:
These regulatory amendments would have no significant cost impact.
5. Local government mandates:
The proposed amendments may have a nominal impact on local social service districts (local districts). Both before and after the regulatory change, the local districts would be required to send a representative to attend the underlying hearing and be prepared to defend the case on the merits. After the regulatory change, there is a greater likelihood that the matter would proceed to the merits rather than be dismissed on procedural grounds. As such, there is an increased likelihood of action necessary by the local districts to comply with resulting client-favorable fair hearing decisions that prior to the regulatory change might have resulted in procedural dismissals of the hearing requests.
These regulatory amendments would not impose any additional programs, services, duties or responsibilities upon the local districts, other than the above. The Office of Administrative Hearings is responsible for reviewing requests to have fair hearings rescheduled and for making good cause determinations.
6. Paperwork:
There would be no additional forms required to support this process.
7. Duplication:
The proposed amendments to 18 NYCRR § 358-5.5 would not duplicate, overlap or conflict with any existing State or federal requirements.
8. Alternatives:
The alternative is to leave the regulation as it is currently written. However, OTDA is pursuing amendments because the goal of this rule is to ensure fairness in the hearings process.
9. Federal standards:
The proposed amendments would not conflict with federal standards for public assistance, medical assistance, food stamps and services.
10. Compliance schedule:
The local districts would be in compliance with the proposed amendments upon their adoption, and the Office of Administrative Hearings would utilize its existing administrative framework to be in compliance with the proposal on its effective date.
Regulatory Flexibility Analysis
1. Effect of rule:
The proposed amendments would have no effect on small businesses. The proposed amendments may have a nominal impact on local districts. Both before and after the regulatory change, the local districts would be required to send a representative to attend the underlying hearing and be prepared to defend the case on the merits. After the regulatory change, there is a greater likelihood that the matter would proceed to the merits rather than be dismissed on procedural grounds. As such, there is an increased likelihood of action necessary by the local districts to comply with resulting client-favorable fair hearing decisions that prior to the regulatory change might have resulted in procedural dismissals of the hearing requests.
2. Compliance requirements:
As this proposed regulation is primarily directed at OTDA's administration of the hearings process, these regulatory amendments would only have a nominal impact on the local districts.
3. Professional services:
The proposed amendments would not require small businesses or local governments to hire additional professional services.
4. Compliance costs:
These regulatory amendments would have no significant cost impact.
5. Economic and technological feasibility:
All small businesses and local governments have the economic and technological ability to comply with the proposed regulation.
6. Minimizing adverse impact:
It is anticipated that there would not be an adverse economic impact.
7. Small business and local government participation:
All 58 local districts in the State have had an opportunity to review and comment upon these proposed regulatory amendments. Five districts, including two rural social services districts (rural districts), provided comments. The comments can be addressed in four groups: 1) Clarification regarding aid-to-continue, timeliness of a requested restoration to the fair hearing calendar and the recoupment of overpayments (three districts); 2) The impact of the amended regulation on a Notice of Intent's statute of limitations in the context of a fair hearing, and what to bring to a hearing (one district); 3) Maintenance of an Appellant's case file (one district); and 4) The burdensome nature and costs (three districts).
In regard to the first of the four groups, aid-to-continue would be ordered in the situation where good cause is found for defaulting a prior fair hearing. This good cause determination will be decided by the Administrative Law Judge. Timeliness would be a factor in the good cause determination along with the Appellant's reason for missing the originally scheduled hearing. One district misinterpreted the language of the amendment as abrogating time as a consideration in the instant process; however, time will be a component of the good cause determination. Where aid-to-continue has been ordered, but the Appellant ultimately losses his/her challenge to the local district's action on the merits, the local district, consistent with existing policy, should make efforts to recoup any overpayments.
In regard to the applicability of the statute of limitations, procedures regarding the statute of limitations will remain the same. As to how to prepare for a reopened hearing, the local district should follow current procedures. At the reopened fair hearing, the local district should be prepared to argue the merits, if it so desires, or the local district could rest on the statute of limitations argument, at its option.
In regard to maintaining an Appellant's case file, the local districts should continue their current case retention policy. The concern that case files would have to be kept for an unlimited time period is ameliorated by time being a factor in the good cause determination.
As to the burdensome nature of the change and costs, one of the counties feels that certain recipients are requesting fair hearings and receiving aid-to-continue benefits pending the issuance of a final determination on benefits to which they may not be entitled. Also the local districts feel that they are understaffed, and that the removal of the time frames will essentially lead to unfair awards of aid-to-continue. This concern has to be weighed against the due process rights of those fair hearing Appellants who would be entitled to their benefits after establishing a legitimate reason for defaulting the prior fair hearing. It should be noted that the Appellant will have the initial burden of demonstrating that he/she has a good cause reason for missing the originally scheduled hearing. It should be further noted that the Administrative Law Judges are charged with the responsibility to review the Appellant's reasons for a default.
Rural Area Flexibility Analysis
1. Types and estimated numbers of rural areas:
The proposed amendments may have a nominal impact on the forty-four rural social services districts (rural districts) in the State. Both before and after the regulatory change, the rural districts would be required to send a representative to attend the underlying hearing and be prepared to defend the case on the merits. After the regulatory change, there is a greater likelihood that the matter would proceed to the merits rather than be dismissed on procedural grounds. As such, there is an increased likelihood of action necessary by the rural districts to comply with resulting client-favorable fair hearing decisions that prior to the regulatory change might have resulted in procedural dismissals of the hearing requests.
2. Reporting, recordkeeping and other compliance requirements; and professional services:
No additional record keeping, reporting or compliance would be required by the rural districts, other than that noted above. The proposed amendments would primarily affect the operations of OTDA's Office of Administrative Hearings.
3. Costs:
These regulatory amendments would have no significant cost impact.
4. Minimizing adverse impact:
It is anticipated that there would not be an adverse economic impact.
5. Rural area participation:
All rural districts in the State have had an opportunity to review and comment upon these proposed regulatory amendments. Two rural districts provided comments, which can be addressed in two groups: 1) Clarification regarding aid-to-continue, timeliness of a requested restoration to the fair hearing calendar and the recoupment of overpayments; and 2) The burdensome nature and costs.
In regard to the first of the two groups, aid-to-continue would be ordered in the situation where good cause is found for defaulting a prior fair hearing. This good cause determination will be decided by the Administrative Law Judge. Timeliness would be a factor in the good cause determination along with the Appellant's reason for missing the originally scheduled hearing. Where aid-to-continue has been ordered, but the Appellant ultimately losses his/her challenge to the local district's action on the merits, the local district, consistent with existing practices, should make efforts to recoup any overpayments.
As to the burdensome nature of the change and costs, one of the counties feels that certain recipients are requesting fair hearings and receiving aid-to-continue benefits pending the issuance of a final determination on benefits to which they may not be entitled. Also the local district feels that it is understaffed, and that the removal of the time frames will essentially lead to unfair awards of aid-to-continue. This concern has to be weighed against the due process rights of those fair hearing Appellants who would be entitled to their benefits after establishing a legitimate reason for defaulting their prior fair hearing. It should be noted that the Appellant will have the initial burden of demonstrating that he/she has a good cause reason for missing the originally scheduled hearing. It should be further noted that the Administrative Law Judges are charged with the responsibility to review the Appellant's reasons for a default.
Job Impact Statement
A Job Impact Statement is not required for the proposed amendments. It is apparent from the nature and the purpose of the proposed amendments that they would not have a substantial adverse impact on jobs and employment opportunities. The proposed amendments would not affect in any real way the jobs of the workers in the local districts or OTDA. Thus the changes would not have any adverse impact on jobs and employment opportunities in New York State.
