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FAIR HEARING PROCESS

 

If your local Department of Social Services (DSS) or welfare office denies your application for assistance, or takes an action on your case that you disagree with, like reducing or discontinuing your benefits, you have the right to request a fair hearing to challenge their decision.

How to Request a Fair Hearing

If you are already receiving assistance, it is very important that you ask for a hearing before the date the action takes effect.  For example, if you receive a notice telling you your benefits will stop on May 31st, you should ask for the hearing before May 31st, if you want to continue receiving your benefits until the hearing is held and the judge writes a decision. You can still ask for a hearing for up to 60 days from the notice date for cash assistance or Medicaid, and up to 90 days for food stamps, but you will only continue to receive your benefits if the hearing is requested before the negative action takes place.

If you are requesting a hearing because your application was denied, or if your benefits were discontinued because you did not ask for a hearing in time, you can reapply for benefits while you are waiting for your hearing to be scheduled.

You can request a hearing by mail, telephone, fax, or by using the Internet. You can mail your request to:

New York State Office of Temporary and Disability Assistance
Office of Administrative Hearings
P.O. Box 1930
Albany, New York 12201-1930.

You can fax your request to (518) 473-6735.

You can request a hearing by telephone by calling 1-800-342-3334

You can also request a fair hearing using the Internet. To request a hearing using the Internet, you should go to http://www.otda.state.ny.us/ At this site/page, under the topic of "Services" click on Fair Hearings and follow the instructions. You should have a copy of any notice you received ready when you begin the process of requesting a fair hearing.

There is often a long wait to request a fair hearing by phone, and the telephone call can be expensive. Sending the request by fax or by using the Internet is just as fast as calling, and often less expensive.

If you are requesting a hearing to disagree with a notice DSS or the welfare office has sent you, send or fax a copy of the notice, or have the notice ready when you call for a hearing. If you have an advocate, he or she can request the hearing for you.

What Happens After You Request a Fair Hearing

A week or two after you request a hearing, you should receive a confirmation notice in the mail, verifying that you requested a hearing, giving you a hearing number, and telling you if you can expect your benefits to continue until the hearing is held. A few weeks after this, you should receive another notice, giving you the actual hearing date, location and time.

You can ask the welfare office to let you review your case file prior to your hearing. You can also ask for the hearing "packet"--the documents that the welfare office has put together to represent their position at the hearing.

At the Hearing

Fair hearings are administered by the NYS Office of Temporary and Disability Assistance. They will provide a judge (hearing officer) to listen to your problem and decide what action should be taken. Fair hearings are much less formal than court proceedings you may have witnessed or seen on television. You do not need to have legal representation to have a fair hearing. You can bring witnesses to help you.

Make sure you arrive at your hearing a few minutes early; hearings are usually scheduled on a first-come, first-served basis. Try to be as prepared as possible with whatever documents you have to support your position. Many hearings are about whether or not you provided a document to the welfare office, like a landlord statement or a birth certificate. Even if you did not provide the document to your caseworker previously, try to bring it with you to the fair hearing to give to the judge.

Be patient and polite. The judge will first allow the representative from the welfare office to make their case. You will be given a chance to ask them questions about anything they have said. The judge will then give you a chance to explain your position. The welfare representative will then have a chance to ask you questions. The judge may ask you or the welfare representative questions to clarify your position.

The judge should listen to all the testimony and evidence, and then make a decision based on the law as it affects your particular situation.

What Cannot Be Fixed at a Fair Hearing?

The judge will only be able to hear testimony and receive evidence about the problem you asked for a hearing on. You may have other problems with your case, but the judge will not be able to address them unless you specifically included them in your hearing request.

The judge also cannot change the law. You may, for example, think you are not receiving enough assistance; however, if the amount you are receiving is correct under the current law, the judge cannot direct the welfare office to give you more. You must meet New York State's eligibility rules for any benefits you receive. The laws decide who is eligible for what benefits; the judge decides if the law was applied correctly in your case.

After the Hearing

The judge does not give you a decision at the hearing. It can take several weeks to receive a hearing decision, (unless you requested an emergency hearing because you were denied emergency assistance). You will receive a decision in the mail. The decision is usually several pages long, but near the end is a section called DECISION AND ORDER--this tells you if you won or lost the hearing. If you win, the local welfare office should comply with the decision within ten days; if you lose, the local welfare office can go ahead with the action they were taking against you. If you received benefits pending your hearing and you lose, the local welfare office will want you to repay the extra benefits you received, usually by taking 10 percent or less of your regular monthly benefits until it is repaid.

If you have won your hearing but your local welfare office has not complied with the decision, you can contact the Albany Fair Hearing office (the contact information is in your decision) for help to get the hearing decision enforced. You can also try contacting your local legal services program for assistance.

What if I Don't Agree with the Decision?

If you lose the hearing and believe the decision is wrong, you may be able to file an appeal in New York State Supreme Court. It is very difficult to file an appeal without an attorney, and unfortunately, you may not be able to get a free attorney to file for you. You can contact your local legal services office for more information.

 

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(c) Legal Assistance of Western New York, Inc. ®

This article provides general information about this subject. Laws affecting this subject may have changed since this article was written. For specific legal advice about a problem you are having, get the advice of a lawyer.  Receiving this information does not make you a client of our office.

 

rev. 11/4/05 jh