TDA-45-15-00011-A Burden of Proof at Fair Hearings Challenging Interim Assistance Reimbursement (IAR) Amounts  

  • 5/4/16 N.Y. St. Reg. TDA-45-15-00011-A
    NEW YORK STATE REGISTER
    VOLUME XXXVIII, ISSUE 18
    May 04, 2016
    RULE MAKING ACTIVITIES
    OFFICE OF TEMPORARY AND DISABILITY ASSISTANCE
    NOTICE OF ADOPTION
     
    I.D No. TDA-45-15-00011-A
    Filing No. 409
    Filing Date. Apr. 13, 2016
    Effective Date. May. 04, 2016
    Burden of Proof at Fair Hearings Challenging Interim Assistance Reimbursement (IAR) Amounts
    PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following action:
    Action taken:
    Amendment of section 358-5.9(a) of Title 18 NYCRR.
    Statutory authority:
    Social Services Law, sections 17(a)-(b), (i), 20(2)-(3)(d), 22(8), 34 and 95; L. 2012, ch. 41
    Subject:
    Burden of proof at fair hearings challenging Interim Assistance Reimbursement (IAR) amounts.
    Purpose:
    Clarify existing State regulations relative to fair hearings and render them consistent with New York State court precedents.
    Text or summary was published
    in the November 10, 2015 issue of the Register, I.D. No. TDA-45-15-00011-P.
    Final rule as compared with last published rule:
    No changes.
    Text of rule and any required statements and analyses may be obtained from:
    Richard P. Rhodes, Jr., New York State Office of Temporary and Disability Assistance, 40 North Pearl Street, 16C, Albany, NY 12243-0001, (518) 486-7503, email: richard.rhodesjr@otda.ny.gov
    Initial Review of Rule
    As a rule that does not require a RFA, RAFA or JIS, this rule will be initially reviewed in the calendar year 2021, which is no later than the 5th year after the year in which this rule is being adopted.
    Assessment of Public Comment
    The Office of Temporary and Disability Assistance (OTDA) received comments relative to the regulatory amendments. These comments have been reviewed and duly considered in this Assessment of Public Comments.
    Two comments requested that OTDA amend 18 NYCRR § 358-5.9(a)(2)(i) to expand the social services agency’s burden of proving that its actions were correct regarding “any recovery from the initial payment of supplemental security income as reimbursement of public assistance, including but not limited to validity of an interim assistance reimbursement (IAR) authorization, the source of funding or the amount deducted” (emphasis in original). The specific purpose of the regulatory amendments is to clarify which party bears the burden of proof at fair hearings concerning Interim Assistance reimbursement (IAR) as to the issues of the source of the funding and the amount deducted from the initial payment of Supplemental Security Income (SSI) as reimbursement of public assistance. The general right to a fair hearing regarding IAR and the amount deducted is afforded under a different State regulation ─ 18 NYCRR 358-3.1(b)(15). Additionally, the right to a fair hearing pertaining to IAR is also delineated on OTDA Form LDSS 2921 Statewide (the common application). Consequently, OTDA maintains that the requested amendment is unnecessary.
    A related comment requested that OTDA amend 18 NYCRR § 358-3.1(b)(15) to include the same italicized language discussed above. This comment is beyond the scope of this Assessment of Public Comments insofar as it does not specifically pertain to the regulatory amendments, and therefore is not appropriately addressed in this Assessment of Public Comments. However, even if this comment was properly within the scope of this Assessment of Public Comments, OTDA reiterates that the right to a fair hearing pertaining to IAR is already delineated in State regulation at 18 NYCRR § 358-3.1(b)(15) and in the Statewide common application, thereby rendering this requested amendment unnecessary.
    One comment requested that OTDA amend 18 NYCRR § 358-5.9(a)(2)(i) to expand the social services agency’s burden of proving that its actions were correct regarding “the denial or adequacy of emergency assistance ….” 18 NYCRR § 358-3.1(b)(1) and (6), respectively, afford an applicant for or recipient of public assistance, benefits, or services the general right to a fair hearing if an application has been denied by a social services agency or if a recipient’s public assistance is inadequate. OTDA reiterates that the specific purpose of the regulatory amendments is to clarify which party bears the burden of proof at fair hearings concerning IAR as to the issues of the source of the funding and the amount deducted from the initial payment of SSI as reimbursement of public assistance. Consequently, OTDA maintains that the comment is outside the scope of the regulatory amendments.

Document Information

Effective Date:
5/4/2016
Publish Date:
05/04/2016