In New York State prior to 1970 the procedure for the termination of welfare benefits required a seven-day notice and gave the welfare recipient the right to submit a written statement of protest. It did not, however, afford a pre-evidentiary hearing before termination of benefits. John Kelly, a Cash Assistance recipient in NYC, and others sued NYS and NYC when local officials terminated their welfare benefits without prior notice and an opportunity to be heard. The plaintiffs won at trial, and the Commissioner of the New York City Department of Social Services at that time appealed to the U.S. Supreme Court.
In this landmark case, (1970), the U.S. Supreme Court ruled that the Due Process Clause of the Fourteenth Amendment to the U.S. Constitution requires a pre-termination hearing before a recipient of certain welfare benefits can be deprived of their benefits. That is, the Court held that welfare recipients have the right to present evidence and arguments to an impartial decision maker before their welfare benefits can be terminated. The decision also directed the States to provide timely and adequate notice before the government entity discontinued benefits. In NYS these hearings are called Fair Hearings.
The U.S. Supreme Court held that a person has a “property interest in certain government entitlements,” which requires notice and a hearing before a government entity (either state or federal) can take them away. The court in Goldberg decided that such entitlements (e.g., welfare benefits, government pensions) are a form of “new property” that require pre-deprivation procedural protection, doing away with the traditional distinction between rights and privileges. Prior to , welfare benefits were widely considered to be a privilege or a charitable payment, rather than an entitlement.
WHO ADMINISTERS THE FAIR HEARINGS
In New York State, the NYS Office of Temporary and Disability Assistance (OTDA), through its Office of Administrative Hearings (OAH) is the administrative agency in charge of fair hearings. OAH’s fair hearing procedures are governed by federal and state law, as well as OTDA regulations set forth in Part 358 of title 18 of the New York Codes, Rules and Regulations (NYCRR). Thus, fair hearings are under the jurisdiction of the OAH and local social service districts are responsible for complying with decisions issued by OAH.
A Summary of Fair Hearings
Public entitlement programs, including Cash Assistance, Medicaid, SNAP, and HEAP are secured by “due process procedures.” That is, once public entitlements are enacted into law, they are considered rights with safeguards to protect individuals from erroneous decisions by the government. When an individual’s application has been denied or a recipient’s benefits have been or will be discontinued, reduced, or suspended, the individual can appeal.
NYS’ name for the Cash Assistance program is Public Assistance; in NYC it is called Cash Assistance.
Other Types of Appeal Procedures
Informal advocacy is the process of communicating with the local social services district that administers the public entitlement programs. In New York City, the local services district is the Department of Social Services/Human Resources Administration, commonly referred to as HRA. By dealing directly with HRA and working up the chain of command, an advocate may improve an individual’s position or solve the problem without formal intervention. For an overview of informal advocacy procedures refer to Advocacy, Informal Advocacy.
Advocates are advised to pursue formal advocacy procedures while simultaneously employing informal advocacy to ensure aid continuing rights and to make sure the statute of limitations to request a fair hearing does not run out in case informal advocacy is unsuccessful.
CLASS ACTION LAWSUITS
A class action is a form of lawsuit in which one or more individuals file a lawsuit for themselves and other individuals in a similar situation. Currently there are several class action lawsuits being litigated that are seeking new procedures or to enforce established procedures in place for welfare applicants and recipients. For a listing of these lawsuits refer to Advocacy, Informal Advocacy, Welfare Class Action/Lawsuits.
A conference is an informal meeting at an HRA Job Center, SNAP Center or Medicaid Center when HRA has made a determination affecting an individual’s benefits or request for benefits. A conference is typically held at the center where the case is located with an HRA employee who has the authority to make decisions on behalf of HRA. Refer to Advocacy, Informal Advocacy, Strategies for Common Problems for additional information on conferences.
Conciliation or Re-Engagement is an informal dispute resolution process designed to resolve Cash Assistance employment-related issues. When HRA believes an individual has failed to comply with the work rules it will initiate the re-engagement/conciliation process.
HRA must issue a Notice of Re-Engagement/Conciliation, which informs the recipient of the particulars of the alleged violation and the necessary actions that may be taken to avoid a sanction. The Re-Engagement Notice will inform the client that she has ten days within which to request a Conciliation Conference, an explanation of what constitutes good cause and the types of evidence that may be brought to the conciliation conference to demonstrate good cause, or that the individual should be exempt from work activities. The conciliation takes place at the Job Center,
Under a new law, as of December 18, 2015, recipients will be able to avoid imposition of the sanction by showing any one of the following:
- The client did in fact comply with the infraction being accused of
- The infraction was not willful
- There was good cause for the infraction
- The client has become exempt from work activities
- The client is now willing to engage in required work activities.
Refer to Advocacy, Informal Advocacy, Strategies for Common Problems for additional information on the conciliation process.
MANDATORY DISPUTE RESOLUTIONS
Mandatory Dispute Resolutions (MDRs) are scheduled by HRA when a Cash Assistance (CA) applicant/recipient requests a fair hearing because of a denial, reduction or discontinuance of benefits. An MDR is a pre-hearing interview with an HRA supervisor in an attempt to resolve the issues listed on the fair hearing request. MDRs are not “mandatory” and are not scheduled for every fair hearing requested. For example, CA employment-related issues are not subject to MDRs, see above, Conciliation or Re-Engagement. However, if an MDR is scheduled, the CA applicant/recipient will be notified by mail of the time and place of the MDR appointment.
Although experience varies, it appears that HRA is resolving a significant number of hearing issues at MDRs. Thus, even though MDRs are really not mandatory, it may very well be advantageous for clients to attend.
Although MDR’s are not a requirement, CA applicant/recipients who do not attend without “good cause”, may have it held against them at their fair hearing. During the fair hearing, the hearing officer may consider the failure to appear at the MDR when evaluating the individual’s credibility regarding his/her testimony. Subsequently at the fair hearing the applicant/recipient should present his/her reasons for failure to attend the MDR. The hearing officer must consider the facts, circumstances and information submitted by the individual to determine whether “good cause” existed for failure to attend the MDR.
If the individual is present at the MDR, s/he is allowed to submit documentation to verify or support his/her position. If the issue is decided in the individual’s favor, the MDR supervisor must complete and sign the Mandatory Dispute Resolution Action Taken form, which indicates HRA’s decision not to proceed with the actions noted in the Notice of Decision. The individual should sign this as well and receive a copy of the form. If the corrective action has not been implemented by the date of the fair hearing, the individual should attend the fair hearing and present the Mandatory Dispute Resolution Action Taken form. However, if the corrective action has been implemented, the individual has the option of withdrawing their fair hearing request.
If the individual is not willing to sign the Mandatory Dispute Resolution Action Taken form, s/he has the right to present his/her case at the fair hearing, as well as the right to present evidence supporting his/her case that was not previously submitted at the MDR interview.
COMPLAINT PROCEDURES AGAINST HRA WORKERS
When an HRA worker mistreats, misinforms, refuses to comply with the law or engages in misconduct of any kind, the applicant/recipient has the right to file a complaint, often referred to as a grievance. To file a grievance call the Office of Constituent Services at 212-331-4640, or mail a complaint letter to:
New York City Human Resources Administration
Family Independence Administration
Office of Constituent Services
150 Greenwich Street, 38th Floor
New York, NY 10007
Once the complaint has been filed follow up with the office to make sure the problem is effectively resolved.