by Gene Doyle, LMSW
In a May 12, 1971 memorandum, NYSDSS Counsel Felix Infausto recommended that the Commissioner sign the proposed order to amend 18 NYCRR Part 300 because the United States Department of Health, Education and Welfare (HEW) Social and Rehabilitation Service (SRS)
"Program Regulation 10-10, dated November 14, 1970 requires the State Plan to contain a provision that program manuals and other policy issuances which affect the public, including Department Regulations and Board Rules governing eligibility be maintained in central office and in each district office of the Department for examination on regular work days by interested individuals. A new subdivision (d) is being added to Section 300.3 to provide for the availability of such materials.
"Furthermore, it is proposed to add a new section 300.5 to Part 300 of the Regulations, for the purpose of requiring that copies of agency program manuals and other public issuances be made available, upon request, without charge to custodians, such as libraries or research centers, which are centrally located and accessible to the recipient population.
"The new section also provides that specific policy manuals shall be made available, upon request, to an applicant, recipient or his representative, to assist him in preparing for a fair hearing. It further provides when a reasonable charge, related to cost, may be made to an applicant, recipient or his representative."
In a December 20, 2004 letter to People Organized for Our Rights, Inc. (P.O.O.R), Maureen Kennedy-Ragule, Chief of the Bureau of Cash Assistance of the New York State Office of Temporary and Disability Assistance (OTDA) acknowledged "that local social services districts have an obligation under 18 NYCRR 300.5(b), that upon request, specific policy material must be made available for an applicant, recipient or his representative to determine whether a fair hearing should be requested or to prepare for a fair hearing."
Ms. Kennedy-Ragule explained that
"OTDA supports the districts in this respect by posting the Administrative Directives, Informational Letters, the program manuals such as the Temporary Assistance Source Book (TASB) and the Food Stamps Source Book (FSSB), etc. on the OTDA web site. We recognize that not everyone has the ability to access materials via the internet and that some older specific policy materials are not available on the internet and the only way that the material can be gotten is from the local district."
Ms. Kennedy-Ragule concluded:
"Your complaint is the first that we have had regarding this issue and we will gladly notify the district or districts in question to remind them of their obligation that when an applicant, recipient or that person's representative requests specific policy material issued by the State agency . . . that specific policy material must be provided free of charge when the request is being made to determine whether or not a fair hearing should be requested or to prepare for a fair hearing."
In an April 4, 2005 Letter to P.O.O.R, Ms. Kennedy-Ragule clarified OTDA policies concerning "access to policy documents needed to determine whether a fair hearing should be requested or to prepare for a fair hearing."
Ms. Kennedy-Ragule announced (at p. 1) that
"we have begun the process of revising the fair hearing language on our CNS and manual notices, and will direct HRA to add the same language to their manual notices. We also will update the Client Informational Booklets by adding similar language to the Booklets at their next revision. Additionally, we will be addressing your concerns with HRA at our next monthly policy meeting, and will also discuss the possibility of putting their procedures on their internet for public access. Another thing that we plan to do is issue an administrative directive reminding districts of their obligations in this area and providing guidance to them."
Ms. Kennedy-Ragule clarified (at pp. 1-2) that
"In your letter you state your concern that our interpretation of 'specific policy material' may be too narrow.We agree that a recipient or his or her representative does not have to specifically identify material by its official title or number/date. It is sufficient for the request to state a specific policy area related to the issues in the fair hearing. The request should be as concise and specific as possible. To the extent requests are voluminous and unwieldy, nobody will be well served.
* * *
"Our interpretation of 18 NYCRR 300.5 (b) is that 'specific policy material' means State issued regulations and policy materials, as well as State approved local policies, procedures or plans. These would include such items as a district's Employment Plan, FEDS Plan, rental supplement plans, etc. These materials must be provided to recipients or their representatives free of charge for the purpose of determining whether a fair hearing should be requested or to prepare for a fair hearing.
"18 NYCRR 300.6 requires districts to submit to OTDA local policies and procedures which are outside of, but pertinent to, rules, regulations and procedures that are mandated or recommended by OTDA. It does not cover policies or procedures that implement State mandated or recommended rules, regulations and procedures or local operational procedures. Anything that is not a State rule, regulation, policy or State approved local policy or plan does not fall under 18 NYCRR 300.5 (b) and must be requested through the [Freedom of Information Law (FOIL)] process. If a local district does have local procedures that have not been submitted to OTDA for approval and they deviate from State regulations and policy, than those policies and procedures may be in violation of State regulations and policy."
Note: OTDA has failed to implement the changes announced in this letter, such as the revisions to the text of notices and Client Informational Booklets or the issuance of an Administrative Directive to remind social services districts of their obligations under 18 NYCRR § 300.5(b) and (c) and to provide them with guidance. Consequently, federal litigation was commenced on June 18, 2015 in Caporicci v Devine, 15-CV-0355 (E.D.N.Y.), which is still pending.
Federal regulations also require that specific policy materials be made available to applicants and recipients to enable them to prepare for a Fair Hearing or to determine whether to request a hearing. See 45 CFR § 205.70, 42 CFR § 431.18(e) and (g) and 7 CFR § 273.15(i)(1).
On January 5, 2016, OTDA issued General Information System (GIS) Message 16 TA/DC001 to announce that a new paragraph has been added to all computer-generated notices to explain that
"The Office of Temporary and Disability Assistance (OTDA) policy issuances and manuals are posted on the OTDA website at otda.ny.gov/legal. These issuances and manuals are available to you or your representative to determine whether a fair hearing should be requested or to prepare for a fair hearing. In addition, upon request to your local social services district, specific OTDA policy issuances and manuals will also be available to assist you or your representative."
This guidance document further explained that
"While OTDA recognizes that all OTDA policy issuances and manuals are available on our website, districts are reminded that they must also make specific policy issuances and manuals available if requested by an applicant, recipient or their representative in order to determine whether a fair hearing should be requested or to prepare for a fair hearing. Districts may choose to satisfy this requirement in one or more of the following ways:
"1) A district may advise the requestor that the fastest way to access the material is to log onto the OTDA website. However, if the requestor states that they want the district to make the materials available, the district may mail the issuance or manual using the United States Post Office or e-mail the material if requested to do so by the requestor;
"2) A district may provide a time and place whereby the requestor may view the issuance or manual. This viewing may be by paper copy or at an electronic terminal. If electronic, the district should provide any necessary assistance needed to access the material."
On March 1, 2016, Administrative Law Judges (ALJs) were given explicit instructions in OAH Procedures Transmittal 16-01 on how to handle Fair Hearings at which appellants requested but did not receive specific policy materials needed to prepare for their Fair Hearing:
"When this issue is raised at the hearing, the Hearing Officer has a responsibility to assess whether the social services district has complied with 18 NYCRR 300.5(b) and that requested specific policy documents have been made available to the Appellant or their representative and take appropriate action if this has not occurred. There are no special requirements an Appellant, or representative, has to follow to make a request. A statement by the Appellant, or their representative, which is as specific as possible, requesting access to policy documents to prepare for a fair hearing is sufficient. If the district does not comply with the request, or the request is made at the time of the hearing, the Hearing Officer may do several things. The Hearing Officer may grant an adjournment so that the district may provide the Appellant, or their representative, with access to specific policy documents as outlined in GIS 16 TA/DC001. The Hearing Officer could also allow a brief recess for the Appellant to review the specific policy documents. When requests for specific policy documents are made by an Appellant’s representative, the Hearing Officer should enquire whether the representative has available Internet access and, if so, advise the representative that all OTDA policy documents are available on the OTDA website. A brief adjournment may be granted to allow the representative an opportunity to review policy documents. As the circumstances of each case can vary, the Hearing Officer is to review this issue on a case-by-case basis" (emphasis supplied).
Id. at pp. 1-2.
In describing the scope of available policy materials, this OAH transmittal explained that
"Examples of policy materials include: Administrative Directives (ADM’s), Informational Letters (INF’s), Local Commissioners Memoranda (LCM’s), General Information System Messages (GIS) and various source books and provider manuals. 18 NYCRR 300.5(b) is applicable to policy materials issued by the New York State Office of Temporary and Disability Assistance (OTDA), the New York State Department of Health, and the New York State Office of Children and Family Services. All OTDA policy documents and manuals are available on the OTDA website. It should also be noted that social services districts sometimes issue their own documents to implement State policy. Such policy materials must be made available, upon specific request, by the social service district to an applicant, recipient or their representative to determine whether a fair hearing should be requested or to prepare for a fair hearing" (emphasis supplied).
Id. at p. 1.
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