PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following action:
Action taken:
Amendment of section 358-5.5 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 regulation to revise the time frames within which an Appellant or an Appellant’s authorized representative must request that a defaulted fair hearing be rescheduled.
Text of final 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] fair hearing to the calendar if the appellant or appellant's authorized representative has met the requirements of subdivision (a) of this section.
(c) If the appellant defaults a fair hearing that is subject to aid-continuing, the right to aid-continuing ends upon default.
(1) If the fair hearing is restored to the calendar based upon a request to do so made within 60 days from the date of the default, aid-continuing will be restored retroactively.
(2) If the fair hearing is restored to the calendar based upon a request to do so made 60 days or more from the date of the default, aid-continuing will be restored prospectively only from the date of the request to restore the fair hearing to the calendar.
(d) In no event will a defaulted fair hearing be restored to the calendar if the request to do so is made one year or more from the date of the defaulted fair hearing.
Final rule as compared with last published rule:
Nonsubstantive changes were made in section 358-5.5(a) and (b).
Revised rule making(s) were previously published in the State Register on
February 29, 2012.
Text of rule and any required statements and analyses may be obtained from:
Jeanine S. 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.ny.gov
Revised 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 ensure 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.
OTDA received comments on the regulations and in response thereto made changes to the regulations as originally proposed. The proposed amendments to 18 NYCRR § 358-5.5 would remove the 15-day and 45-day time frames within which an Appellant or 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 same. What constitutes a good cause would be determined on a case-by-case basis and would be relative to the circumstances of each Appellant. This means that the Appellant's time frame to contact OTDA's Office of Administrative Hearings (OAH) would be proscribed by the Appellant's good cause reason, and timeliness would be a factor to be considered in such determination. Additionally, mindful of the comments received, yet weighing the due process rights of fair hearing Appellants, the proposed regulations would provide a one year time frame from the date of the default within which to ask for the hearing to be reopened. Furthermore, if the request to reopen is made 60 days or more from the date of the default, aid-continuing will be restored prospectively only from the date of the request.
In the Notice of Revised Rule Making published on February 29, 2012, OTDA proposed to amend 18 NYCRR § 358-5.5(a) regarding the Appellant's representation, specifically who may appear at a hearing on behalf of the Appellant when he or she is absent and who may request that a defaulted hearing be reopened. During the public comment period, the advocate community generally opposed the proposed amendments regarding who may appear at a hearing in lieu of the Appellant. OTDA has reviewed the concerns expressed by the advocate community and determined not to pursue amendments regarding representation at this time. The existing regulatory language in 18 NYCRR § 358-5.5(a) and (b) regarding representation will remain in effect.
4. Costs:
These regulatory amendments would have no significant cost impact, and the specific time frames will balance the amount of aid-continuing to be paid and give repose to claims, while providing for the ongoing needs of an Appellant.
5. Local government mandates:
The proposed amendments may have a nominal impact on social services districts. Both before and after the regulatory change, the social services 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 social services districts to comply with resulting client-favorable fair hearing decisions that prior to the regulation 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 social services districts, other than the above. OAH 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:
Social services districts would be in compliance with the proposed amendments upon their adoption, and OAH would utilize its existing administrative framework to be in compliance with the proposal on its effective date.
Revised 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 social services districts. Both before and after the regulatory change, the social services 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 social services 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 social services 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 economic impact:
It is anticipated that there would not be an adverse economic impact.
7. Small business and local government participation:
All 58 social services districts in the State have had opportunities to review and comment upon these proposed regulatory amendments. The first round of comments was responded to in the April 27, 2011 issue of the New York State Register (I.D. No. TDA-17-11-00016-P). A second round of comments was received in response to the April 27, 2011 publication and was addressed in the Assessment of Public Comments published on February 29, 2012 (I.D. No. TDA-17-11-00016-RP). A final round of comments was received in response to the February 29, 2012 publication and is addressed in the current Assessment of Public Comment.
Revised 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 in the State. Both before and after the regulatory change, the rural social services 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 social services 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 social services 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 social services districts in the State have had opportunities to review and comment upon these proposed regulatory amendments. The first round of comments was responded to in the April 27, 2011 issue of the New York State Register (I.D. No. TDA-17-11-00016-P). A second round of comments was received in response to the April 27, 2011 publication and was addressed in the Assessment of Public Comments published on February 29, 2012 (I.D. No. TDA-17-11-00016-RP). A final round of comments was received in response to the February 29, 2012 publication and is addressed in the current Assessment of Public Comment.
Revised 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 in the private or public sectors. The proposed amendments would not affect in any real way the jobs of the workers in the social services districts. Thus the changes would not have any adverse impact on jobs and employment opportunities in the State.
Assessment of Public Comment
The Office of Temporary and Disability Assistance (OTDA) received seventeen communications regarding the regulatory change. Thirteen of the communications were comments from the advocate community, three of the comments came from social services districts (SSDs), and one was from a retired State employee. One of the SSDs requested information. All of these comments were reviewed and considered in this Assessment of Public Comments.
15 and 45 Day Time Frames
In regard to the removal of the 15 and 45 day time frames, eleven advocates specifically endorsed their removal. Two SSDs opposed the removal of the 15 and 45 day time frames, claiming that removal of the time frames would create uncertainty and opined that the current procedures were adequate, and one of them advocated that the 15 day time frame could be expanded to 30 days.
It is noted that Appellants will have the initial burden of demonstrating that they have a good cause reason for missing the originally scheduled hearing, and that time will be a factor in that determination. Any "uncertainty" regarding the ongoing nature of the fair hearings will be no different than it is now, as an Appellant presently can request that a fair hearing be reopened every 44 days, claiming that there is a mailing problem. The reason 30 days was not chosen, was that it does not take into account the variability of reasons for missing a hearing.
One Year Limit
In regard to the one year time limit within which to request a reopening, seven advocates endorsed the time frame, and two opposed the time limit. Two SSDs opposed the time limit. The opposing advocates claimed that there may be exceptional circumstances which would militate against the one year time frame, essentially that the time frame was not long enough. The SSDs opposed the time limit as being too long, claiming that they would have difficulties due to staff turnover, implementing sanctions, case closings and recoupments as they relate to Aid to Continue (ATC). As was indicated in the previous New York State Register publication on February 29, 2012, the award of ATC in a reopening is not automatic, and will be awarded on a case by case basis. In reviewing previous comments, OTDA considered the concerns of the SSDs and determined that a one year time period, as opposed to a six month time period, was reasonable. The one year time frame strikes a balance between protecting the due process rights of the Appellants and providing needed finality to the process. If a default occurs, then the SSD should implement its action. In regard to staff turnover, the complaining SSD did not explain why it had significant staffing turnover.
60 Day Aid to Continue
As to the 60 day time frame to receive ATC, OTDA received five endorsements and two complaints from the advocates. The advocates complained that the 60 day time frame treats Appellants disparately depending on when they request the default to be vacated. OTDA also received a complaint from one SSD, which asserted that the additional ATC would be costly and that the 60 day time frame would be problematic as it relates to managed care and home care. OTDA notes that the proposed regulations were previously revised to add a one year time frame to ask for a defaulted hearing to be reopened. Additionally, a 60 day time frame for retroactive ATC was previously added. These revisions struck a balance between the needs of the Appellants for sustenance, and the fiscal concerns of the SSD regarding the amount of aid-continuing to be paid. As to the SSD's complaint regarding managed care and home care, its concerns are a non-issue as ATC in the areas of managed care and home care is prospective unless there are some outstanding medical bills. If there is an overpayment, the SSD can commence a recoupment action.
Good Cause
Advocate groups opined that the definition of good cause is ambiguous. However, the current regulation already has a good cause standard, and the determination of good cause will be determined on a case by case basis. One commentator opined that the determination of good cause puts too much authority in the hands of OAH intake staff. Under the current regulations, these same individuals regularly make good cause determinations; as such there will be no "increase" in their authority.
Representation
The advocates generally opposed the proposed amendments regarding representation, specifically who may appear at a hearing on behalf of the Appellant when he or she is absent. OTDA has reviewed the concerns expressed by the advocate community and determined not to pursue the proposed amendments regarding representation at this time. The existing regulatory language in 18 NYCRR § 358-5.5(a) and (b) regarding representation will remain in effect.
Litigation
To the extent that certain comments went beyond the scope of commenting on the instant regulation and tried to link it to ongoing litigation in cases such as Fishman v. Daines, 09-CV-5248 (EDNY), which deals with post-default letters, and Shakhnes v. Daines, 06-CV-4103 (SDNY), which deals with the timeliness of hearings, those comments will not be assessed herein other than to note that the proposed regulatory change will ameliorate the situation for Appellants who default a hearing.
