Fair Hearings

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, Goldberg v. Kelly (1970), the U.S. Supreme Court ruled that the Due Process Clause of the Fourteenth Amendment to the U.S. Constitution requires a pre-evidentiary 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 Goldberg court 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 Goldberg v. Kelly, welfare benefits were widely considered to be a privilege or a charitable payment, rather than an entitlement.

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 process is governed by federal and state law, as well as 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.

Public entitlement programs, including Cash Assistance, Medicaid, Food Stamps, 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.

	Note: NYS’ name for the Cash Assistance program is Public Assistance; in NYC it is called Cash Assistance.

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.

	Note: Advocates are advised to pursue formal advocacy procedures while simultaneously employing informal advocacy in case informal advocacy is unsuccessful.

A class action is a form of lawsuit in which a group of individuals collectively file a claim in court. A class action seeks relief for the plaintiffs and other individuals in a similar situation. Currently there are several class action lawsuits being litigated that have relief procedures in place for welfare applicants and recipients. For a listing of these lawsuits refer to Advocacy, Informal Advocacy.

A conference is an informal meeting at an HRA Job Center, Food Stamp 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 decision on behalf of HRA. A conference covers all issues other than Cash Assistance work activity issues, which are covered by conciliation, see below for more information.

A conference may be requested at any time, with or without a fair hearing, whether or not a fair hearing has been requested. To request a conference, call the local center; the number is listed on the Notice of Intent.

HRA has no legal basis for denying a request for a conference, whether or not a fair hearing has been requested. Conferences can be an effective way to resolve disputes, however, aid continuing benefits, see below Fair Hearing Rights, can only result if the individual requests a fair hearing before the effective date of action indicated on the Notice of Intent. Since scheduling a conference does not “stop the clock” on the time frames for requesting a fair hearing, it is advisable to request a fair hearing first, then the conference in order to protect the individual’s rights.

If a favorable determination results from the conference, HRA’s representative should stamp the Notice of Intent with the phrase “Settled in Conference” on the individual’s Notice of Intent. If a fair hearing was scheduled, it may be useful to go to the hearing and present a copy of the stamped notice to the ALJ. While this is not required, it is useful if a dispute arises whether HRA actually withdrew the action, the individual defaulted, or if HRA did not live up to its agreement.

Note: HRA workers may improperly refuse to schedule a conference. Typical improper responses include, "you requested a fair hearing, so you are not entitled to a conference; you did not request a fair hearing, so you are not entitled to a conference; or “HRA does not have to schedule a conference after the effective date on the Notice of Intent”. There is no legal basis for any of these reasons. Individuals may request a conference at any time, even if there is no Notice of Intent and no fair hearing has been requested. If the local center refuses to schedule a conference, advocates should use the chain of command at the local center to schedule a conference. Refer to the section “Advocacy and Appeals, Informal Advocacy” in the respective chapters of Cash Assistance, Food Stamps and Medicaid for the chain of command.

A conciliation is an informal dispute resolution process designed to resolve Cash Assistance work-related issues. When HRA believes an individual has failed to comply with the work rules it will initiate the conciliation process. HRA must issue a Notice of Conciliation, which informs the recipient of the alleged violation. Family Assistance recipients must respond to the Notice of Conciliation within 10 days from date on the notice; Safety Net Assistance recipients must respond within 7 days.

The conciliation takes place at the Office of Employment Services at 109 East 16th Street in Manhattan. When a person reports for a conciliation, HRA must determine whether the individual’s failure to comply with the work rules was “willful and without good cause.” If HRA finds the individual’s failure was not willful and was with good cause, HRA cannot impose a sanction.

If the individual fails to show up at the conciliation or receives an unfavorable determination, HRA will issue a second notice called a Notice of Decision on Your Public Assistance, Food Stamp and Medical Assistance.This notice is usually called a Notice of Intent.

While typically HRA initiates the conciliation process, an individual also has the right to request a conciliation when s/he wants to dispute the work assignment. However, there is no procedure in place by which an individual can request a conciliation. Recipients can attempt to request a conciliation with his/her case worker at the Job Center or an advocate can use the chain of command at the local Job Center to try to schedule a conciliation. Refer to Cash Benefits, Cash Assistance, Advocacy and Appeals, Informal Advocacy for more information about the chain of command at local Job Centers.

A “Mandatory Dispute Resolution” (MDR) is a pre-hearing conference in which HRA proposes to deny, reduce or discontinue Cash Assistance and Food Stamps and those individuals who have requested a fair hearing are called in by the Job Center to discuss the case prior to the fair hearing. Given the number of fair hearing requests, HRA schedules few MDR’s. When an individual requests a fair hearing, the Center will notify the individual of the time and place of the MDR appointment. The individual is not required to attend the MDR appointment in order for the MDR supervisor to resolve the issue. However, if the individual fails to appear without “good cause”, the hearing officer at the fair hearing may consider the failure to appear at the MDR when evaluating his/her credibility in deciding whether to believe his/her testimony concerning the issue for which s/he requested the hearing. In determining whether “good cause” exists the hearing officer must consider the facts, circumstances and information submitted by the individual.

If the individual is present at the MDR interview, 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 Intent. 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.

However, if at this point the individual is willing to comply with HRA’s requests/regulations in order for HRA to withdraw its Notice of Intent, s/he will be asked to sign the Mandatory Dispute Resolution Action Taken form and if signed, will receive a copy of the form. Be aware that if an individual signs this form, s/he waives his/her right to a hearing. 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.

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. Grievances should be mailed to:

New York City Human Resources Administration
Family Independence Administration
Office of Constituent Community Affairs
180 Water Street, Room 2307
New York, NY 10038

Once the complaint has been filed contact the Office of Constituent Affairs at
(212) 331-4640 to make sure the problem is effectively resolved.