Fair Hearing Resources

Directives in Similar Cases

Article ID: 12
Last updated: 25 Jan, 2016

by Gene Doyle, LMSW

New York State's Fair Hearing regulations [18 NYCRR Part 358] include the following provisions:

§ 358-6.3 Direction relative to similar cases

     When a fair hearing decision indicates that a social services agency has misapplied provisions of law, regulations, or such agency's own State-approved policy, the [Office of Administrative Hearings' (OAH's)] letter transmitting such decision to such agency may contain a direction to the agency to review other cases with similar facts for conformity with the principles and findings in the decision.

§ 358-6.5 Compliance with direction relative to similar cases

     When a direction has been given to a social services agency to correct a misapplication of law, regulations or such agency's own State-approved policy in all cases similar to the one in which a decision has been issued, such social services agency must report the actions it has taken to comply with such direction to the commissioner or OAH within 30 days after receipt of the direction. The social services agency must make such additional reports as the commissioner may require.

This administrative equivalent of a judicial class action has been in place for nearly half a century but has been used most sparingly. See 18 NYCRR former § 84.17, adopted January 16, 1968, effective March 1, 1968, which remained in effect through April 21, 1972; 18 NYCRR former § 358.21, adopted April 21, 1972, effective April 22, 1972, which remained in effect through January 14, 1989; 18 NYCRR §§ 358-6.3 and 358-6.5, adopted December 23, 1988, effective January 15, 1989, which remain in effect to the present time.

Arguably, this mechanism enables the Commissioners of the New York State Office of Temporary and Disability Assistance (OTDA) and of the New York State Department of Health (DOH) to fulfill their supervisory duties as the heads of the single state agencies responsible for the statewide administration of New York's various social services programs.

More often than not, appellants' requests for directives in similar cases are denied because the evidence in the record of the Fair Hearing does not adequately demonstrate that the local agency has misapplied law, regulations or State-approved policy beyond the individual appellant's case circumstances.

Fair Hearing Decision Digest on Directives in Similar Cases

The following table lists some of the Decisions After Fair Hearing and Decisions Without Hearings [see 18 NYCRR § 358-6.2] that have, in fact, contained directives in similar cases. In the majority of these decisions, the directives are only prospective in nature despite the authority in 18 NYCRR § 358-6.3 to direct the local social services agency "to review other cases with similar facts for conformity with the principles and findings in the decision."

Decisions issued since November 2010 are available through the Fair Hearing Decision Archive of the Office of Administrative Hearings (OAH).

You can also search for selected decisions in the Online Resource Center's (ORC's) Fair Hearing Bank, which requires registration. After you are registered, log in to the ORC's Fair Hearing Bank.

Note: Some of the regulations upon which these directives were based have been subsequently amended.

Directives in Similar Cases to Correct Misapplication of Law, Regulation or State-Approved Policy Local Social Services Agency FH #
Public Assistance (PA):
• Applicants for PA Benefits:
Register All PA Applications Upon Receipt and Provide Adequate Written Notice to All PA Applicants, Including Those Who Fail to Attend "Orientation/Employment" Sessions"


Schedule Interviews Within Five Working Days After PA Applications Have Been Filed:
Suffolk 1455431R
Schedule Interviews Within Seven Working Days After PA Applications Have Been Filed:
Schenectady 6089653Q
• Discontinuance of PA Benefits:
Cease Use of the Agency's Own Notice Form (M-3H-A) and Use a New Notice Form That Conforms to 18 NYCRR former § 358.8:
New York City (NYC) 1025385Q
• Interim Assistance (IA) Repayment:
Cease Requiring Supplemental Security Income (SSI) Recipients to Execute an IA Repayment Agreement as an Eligibility Condition for Home Relief (HR):
Nassau 0417722P
Cease Use of the Agency's Own Outdated Notice of Recovery of IA Form (W-128HH, Revised 9/23/86) and Use the Current Version of the State-Prescribed Repayment of Interim Assistance Notice (DSS-2425):


• Recoupment of PA Overpayments:
Provide PA Recipients with an Opportunity Prior to the Initiation of Recoupment to Claim that the Proposed Rate of Recoupment Will Cause Undue Hardship:
NYC 0077330H
• Utility Company Referrals:
Take All Necessary Action to Comply with the Requirements of 18 NYCRR Part 394, Including Reporting to the Utility Provider the Results of the Agency's Investigation Within 15 Working Days of Receipt of the Referral:

Emergency Assistance to Families (EAF):
• School Transportation for Homeless Children:
Provide School Transportation to the Children of Homeless Families Who Are Residing in Temporary Housing Outside of the Children's Original School District:
Suffolk 3803657H
Medical Assistance (MA):
• Denial of Prior Approval Requests for Durable Medical Equiment (DME):
Provide MA Recipients with Adequate Notice When Prior Approval Requests Are Denied on the Basis that a Medical Facility Is Responsible for the Provision of the Requested DME:
DOH Office of Health Systems Management
• Duty to Inform MA Applicants:
Advise MA Applicants of the Availability of PA and Food Stamp (FS) Benefits and Suggest that They Immediately Apply for Such Benefits:
Chemung 3725813K
• Pre-Hearing Provision of Agency Documents
Make Good Faith Effort to Comply with 18 NYCRR former § 358.9(d) by Sending Copies of All Documents to Be Submitted Into Evidence at the Fair Hearing in Support of the Proposed Discontinuance, Suspension or Reduction of Assistance Within 72 Hours of Notification of the Fair Hearing Request:

• Recertification-Related MA Discontinuance Notices
Cease the Use of the Agency's Own Notice Form, Which Failed to Specify the Reason or Legal Authority Upon Which Its MA Discontinuance Determination Was Based, and Use a New Notice Form That Conforms to 84 ADM-41:

Cease the Issuance of Any Recertification-Related Discontinuance Notices Until a New Notice Form Has Received State Approval:
NYC 0998610P
• Timely Determinations of MA Eligibility:
Schedule Certification Interviews Within Sufficient Time to Determine MA Eligibility Within the Time Parameters of 18 NYCRR § 360-2.4:
Suffolk 3893628J
Social Services:
• Adult Protective Services (APS) Applicants
Provide All APS Applicants with Adequate Written Notice of the Agency's Determination to Accept or Deny Their APS Applications:
NYC 1685188R

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Article ID: 12
Last updated: 25 Jan, 2016
Revision: 8
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