by Gene Doyle, LMSW
In a May 1, 1991 memorandum to ALJs, Acting Deputy Counsel for Fair Hearings, Russell J. Hanks, set forth the Office of Administrative Hearings (OAH) policy with respect to social services districts' failures to comply with 18 NYCRR Part 358. Under the heading, "Other Concerns" (at p. 3), Mr. Hanks stated that:
"Where an aid-continuing issue arises, the hearing officer has the authority to direct the social services district to continue, discontinue or restore aid when appropriate."
In a June 23, 1992 letter, clarifying OAH policy with respect to appellants' allegations of non-receipt of notices, Mr. Hanks stated:
"with regard to allegations of non-receipt of a notice by an appellant at the time of a fair hearing request . . . the appropriate response is to make the case aid-continuing until the issue of non-receipt is dealt with at the hearing."
This policy clarification is reflected in OAH's online frequently asked questions (FAQs):
Will I continue to receive my benefits while I’m waiting for my hearing?
- If you get a notice telling you that your money or other help will be stopped or reduced, and you ask for a Fair Hearing before the effective date on your notice, your money or other help will, in most instances, stay the same (“aid continuing”) until the Fair Hearing decision is made. If the notice was not sent before the effective date, and you ask for a Fair Hearing within 10 days of the postmark date of the notice, you also have the right to have your money or other help stay the same (“aid continuing”) until the Fair Hearing decision is made.
- If you are requesting a Fair Hearing because you do not agree with a decision that you are not disabled or have work limitations, you must request the hearing within 10 days of the date on the notice in order to be exempt from work related requirements while you are waiting for the Fair Hearing decision.
- IF YOU DO NOT GET A NOTICE ABOUT YOUR CASE, and your money or other help is stopped or reduced, you can still ask for a Fair Hearing. At the same time that you ask for a Fair Hearing, you can ask that your money or other help be restored (“aid continuing”).
- In either case, if you get “aid continuing” and you lose the Fair Hearing, you will have to pay back any Public Assistance and/or SNAP you got while you were waiting for the Fair Hearing decision. Also, if you do get “aid continuing” and you lose the Fair Hearing, you may have to pay back any Medical Assistance you got while you were waiting for the Fair Hearing decision.
- If you do not want the money or other help you have been getting to stay the same until the Fair Hearing decision is made, you must tell us this when requesting your Fair Hearing (emphasis in original).
See also Auguste v Wing, CV-96-1153 (E.D.N.Y. November 18, 1996), reported at 1996 WL 684428 *3, 1996 U.S. Dist. LEXIS 20118 *7, in which Chief Judge Charles P. Sifton explained that
A request for aid-continuing is "timely" when (1) the request is made prior to the effective date of a timely and adequate notice or (2) the request is made within ten days of the day on which a contemporaneous notice is mailed. 18 N.Y.C.R.R. § 358-3.6(a). Factual disputes regarding the timeliness or receipt of notice are to be resolved at the fair hearing, and aid-continuing should be granted until a determination is made. Matter of York v Sabol, No. 25677/91 (Sup. Ct. Queens Co. 1992).
Please read the Disclaimer.