The Fair Hearing Process
When Can I Request a Fair Hearing?
If the Department of Social Services (DSS) does something you do not agree with you have the right to request a fair hearing. Requesting a fair hearing allows you to challenge their decision and explain why you disagree to an administrative law judge.
For example, you might ask for a fair hearing if your application is denied or if your benefits are being cut off. You might also ask for a hearing if the amount of benefits you receive is being decreased.
NOTE: When you ask for a fair hearing can be very important. If you are already receiving benefits and you want to keep getting the same benefits until the hearing, you must make your request for a fair hearing BEFORE the date the notice goes into effect. When you receive benefits while you wait for the hearing, those benefits are called “aid to continue.”
For example, if you receive a notice telling you that your benefits will stop on May 31st, you should submit your request for a Fair Hearing before May 31st. This will allow you to continue receiving your benefits until the hearing is held and the judge makes a decision.
You can still ask for a hearing for up to 60 days after the notice date for cash assistance or Medicaid. You can still ask for a fair hearing up to 90 days after the notice date for food stamps. However, you will only continue to receive your benefits if your hearing is requested before the change takes place.
Is There any Downside to Requesting a Fair Hearing?
If you are receiving “aid to continue” and you lose your Fair Hearing, you may have to pay back the benefits you received. If you receive benefits again in the future, DSS may “recoup,” or take, up to 10% of your benefit amount to pay back what you owe. If this happens to you, you can ask them to take less from you if it is causing you problems.
How do I Request a Fair Hearing?
You can request a Fair Hearing by mail, telephone, fax, or by using the Internet. Your request goes through the Office of Temporary and Disability Assistance (OTDA).
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
To request a hearing using the Internet, you should go to http://www.otda.state.ny.us/. It involves a few steps but it is the fastest and easiest way to ask for hearing. When you open that page, look on the left side for a box that says “Programs & Services.” Click on that box.
Once you click on “Programs and Services” you will be brought to another part of the website. Then click on the button that says “Fair Hearings.”
Then you want to click on “Request a Fair Hearing.”
Finally, you want to click on “Fair Hearing Online Request Form” and you will be brought to the online Fair Hearing request form. It will walk you through the information it needs to request a hearing.
Does it Make a Difference How I Request my Fair Hearing?
No. If you use as phone to ask for a Fair Hearing, you will get the same Fair Hearing that you would get if you had used the Internet to ask for one. However, you may have to wait a long time if you try to ask over the phone. A long telephone call to another area code can be expensive. Using a fax or the internet to ask for a hearing can be just as fast and less expensive. If you request your hearing online or by fax, make sure to keep a copy of the confirmation that the request went through.
What If I Need a Fair Hearing as Soon as Possible?
If your situation is an emergency, you should try to request your hearing over the phone. When you speak to someone, tell them that you need what is called an “Emergency Fair Hearing” and explain to them why you need it. If they agree that it is an emergency, they will try to schedule it as soon as possible. Depending on how soon it is, there may not be time for them to mail you out a letter about it so be sure to write down the date, time, and location that they tell you.
Do I Need a Notice from DSS to Request a Fair Hearing?
No. You do not need to have a notice from DSS to request a Fair Hearing. This is also true if you have lost or misplaced the notice you are asking for a Fair Hearing about. You can also ask for a hearing if you have not received a decision on your application and you believe it is delayed.
What Information Should I Have When I Ask for a Fair Hearing?
If you do not have a notice, then you will want to know your name, date of birth, social security number, the county that you live in, and the reason why you are asking for a Fair Hearing.
If you are asking for a Fair Hearing based on a notice DSS sent you, you will want to have that notice with you. If you are requesting a hearing by phone, they will ask you for some information from that notice. If you are requesting a hearing by fax or by mail, you may want to include a copy of the notice with what you send. If you are asking for a hearing online, then you the computer will ask you for some information from that notice.
If you have an advocate, he or she may be able to request the hearing for you. You should ask them if they can.
Can I Reapply for Benefits if I am Requesting a Fair Hearing?
Yes, generally you can do both at once. If you are requesting a hearing because your application was denied you can reapply for benefits while you are waiting for the Fair Hearing. Also, if you are requesting a hearing because your benefits were discontinued, you can try to reapply for benefits while you are waiting for a hearing to be scheduled.
What Happens After I Request a Fair Hearing?
After you request a Fair Hearing, you should receive what is called an Acknowledgment Notice in the mail. You should get an Acknowledgment Notice a week or two after you request a hearing. An Acknowledgment Notice is different than the Scheduling Notice. An Acknowledgment Notice is sent to confirm that you requested a Fair Hearing. It will give you the number assigned to your hearing. It will also tell you if you will continue to get benefits while you wait for the hearing.
Then, after another week or two, you should get a Scheduling Notice in the mail. The Scheduling Notice will tell you the time, date, and location of your Fair Hearing.
What if I Know I Cannot go to the Fair Hearing at the Scheduled Time?
If you know you cannot go to the Fair Hearing at the scheduled time you should contact the New York State Office of Temporary and Disability Assistance. You can ask them to move the date of your Fair Hearing so that you can be there. Asking them to move it to a later date is also called an adjournment.
Just like when you first asked for a Fair Hearing, you can ask for an adjournment by phone, fax, mail, or online. However, because you do not know if OTDA will agree to a different date, it is best if you call and speak to a live person. If you ask for an adjournment you should keep proof that you asked. This is because if you find out later that your Fair Hearing was not moved, you will need that proof if you want to get your Fair Hearing reopened.
What Can I do to Prepare for my Fair Hearing?
Before your Fair Hearing, you should gather any proof you have that supports what you are going to say. You will want to bring this proof with you to the hearing so that you can show the judge.
If you think that the Department of Social Services has a copy of what you are looking for in your file, you can ask them to let you review your case file before the hearing. You can also ask for a copy of the packet DSS is going to use at the Fair Hearing. The packet is made up of different documents that support their position and the decision they made about your case.
What Should I Know Before I go to my Fair Hearing?
Fair Hearings are handled by the New York State Office of Temporary and Disability Assistance (OTDA). Each Fair Hearing is administered by an administrative law judge. At the hearing the judge will listen to both sides, look over the paperwork and may ask questions. A Fair Hearing is much less formal than other court proceedings. For example, it is not as formal as the court you may have seen on television or in the movies.
You do not need to have legal representation to have a fair hearing. You can bring witnesses and paperwork to help you.
It is important that you arrive at least a few minutes early. Generally you will have to check-in when you arrive. If you do not do this then DSS may think that you did not show up. The order for Fair Hearings on a given day is normally first-come, first served. This means the earlier you check-in, the less you will have to wait.
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 DSS to explain their actions. Once they finish you will be given a chance to ask them questions about anything they have said. Then the judge will give you the opportunity to explain your side. Once you finish speaking then the representative from DSS will have a chance to ask you questions. The judge may ask you and/or the DSS representative questions.
The judge should listen to all the testimony and look over all of the evidence. The judge should then make a decision based on the law as it affects your particular situation. You will usually not receive a decision on the same day as your hearing.
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. The judge will not be able to address them unless you specifically included them in your Fair Hearing request.
The judge also cannot change the law. For example, you may think you are not receiving enough assistance. However, if the amount you are receiving is correct under the current law then the judge cannot order DSS 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 only decides if the law was applied correctly in your case.
What Happens After the Hearing: The Decision
Generally, the judge does not give you a decision at the Fair Hearing. It can take several weeks to receive a decision on your Fair Hearing. You will receive a decision in the mail. The decision can be several pages long. Near the end of the decision there is a section called “DECISION AND ORDER.” This section is where it will say if the judge ruled in your favor or against you.
If the judge rules in your favor, DSS should do what the decision says within ten days. If the judge rules against you, DSS can go ahead with the action they were taking against you.
If you went through an Emergency Fair Hearing, you should receive decision soon after your Fair Hearing.
If you have won your hearing but DSS has done what the judge told them to do, you can contact OTDA for help. How to contact ODTA will be in the decision you get. 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. Appeals go through the New York State Supreme Court. It can be very difficult to file an appeal without an attorney. You can contact a legal aid office in your area for more information.
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.
Last Review Date: January 2016