358-3.1 Right to a fair hearing.

    (a) An applicant or recipient has the right to challenge certain determinations or actions of a social services agency or such agency's failure to act with reasonable promptness or within the time periods required by other provisions of this Title, by requesting that the OAH provide a fair hearing. The right to request a fair hearing cannot be limited or interfered with in any way.

    (b) If you are an applicant or a recipient of assistance, benefits or services you have a right to a fair hearing if:

        (1) your application has been denied by a social services agency, or you have agreed in writing that your application should be withdrawn but you feel that you were given incorrect or incomplete information about your eligibility for the covered program or service; or

        (2) a social service agency has failed to:

            (i) determine your eligibility for a covered program or service with reasonable promptness or within the time periods required by other provisions of this Title;

            (ii) issue or adjust your cash grant;

            (iii) issue or adjust your food stamp benefits; or

            (iv) authorize medical care or services for you; or

        (3) your public assistance, medical assistance, food stamps or services have been discontinued, suspended or reduced, or your public assistance, medical assistance or food stamps have been increased; or

        (4) the method or manner or form of payment of all or part of your public assistance grant has been changed, a restricted payment is being made or is being continued or a medical assistance authorization is restricted; or

        (5) you object to the payee selected for a restricted payment; or

        (6) your public assistance, medical assistance, HEAP or services are inadequate; or

        (7) although there has been no change in the amount of your public assistance grant, medical assistance spenddown or food stamp benefits, you wish to challenge the social services agency's determination that the amount of one of the items used in the calculation of your public assistance grant, medical assistance spenddown or food stamp benefits has changed; or

        (8) your request for restoration of any food stamp benefits lost less than one year prior to the request for restoration has been denied; or you do not agree with the amount of food stamp benefits restored or any other action taken by the social services agency to restore such benefits; or

        (9) your food stamp benefits have been reduced, suspended or cancelled as a result of an order issued by the United States Food and Nutrition Service to reduce allotments because the requirements of states participating in the Food Stamp Program will exceed appropriations; however, in such case you have a right to a fair hearing only if you believe that your benefit level was computed incorrectly under federal rules, or that federal rules were misapplied or misinterpreted; or

        (10) you are aggrieved by a mass change in the Food Stamp Program; or

        (11) within a certification period, the amount of your food stamp benefits is inadequate and you have made the request for a fair hearing within such certification period; or

        (12) your application for food stamp benefits has been denied or your food stamp benefits have been reduced or discontinued due to a determination that you are not exempt from Food Stamp Program work requirements and that you have failed to comply with work registration or employment and training requirements. You may request a fair hearing to review such determination including the determination of exemption status, the type of requirement imposed, or a social services agency's refusal to make a finding of good cause for failure to comply with such requirements if you believe that the finding of failure to comply was improper; or

        (13) you are required to participate in a service, except when required to do so by court order; or

        (14) you are an applicant for or a recipient of public assistance and you object to a social services agency determination that you are not exempt from work program requirements or to the determination that you are not work-limited as provided by 12 NYCRR 1300.2; or

        (15) you object to the amount deducted from your initial payment of Supplemental Security Income as reimbursement of public assistance; or

        (16) the amount you are being charged for a service has been increased and such increase is not based on a change in the fee or family Share schedule; or

        (17) you disagree with the amount of a claim for the overpayment of public assistance or the over-issuance of food stamp benefits, except if the amount of such claim has already been determined in accordance with Part 359 or Part 399 of this Title, by an administrative disqualification hearing, a waiver of an administrative disqualification hearing, a court determination, or a disqualification consent agreement; or

        (18) you are a recipient of medical assistance and you have reached a utilization threshold and your application for an exemption from or increase to such threshold has been denied; or

        (19) you are participating in a work-related program or activity under 12 NYCRR Part 1300 and you have a complaint regarding the calculation of your hours of participation in work experience or in work experience as part of community service; or

        (20) you have been denied a waiver of public assistance program requirements under section 351.2(1) of this Title or an extension of such waiver has been denied or such waiver has been terminated or modified.

    (c) As the sponsor of an alien receiving food stamp benefits and for whom there has been an overissuance of benefits for which you are liable, you have a right to a hearing to contest the following:

        (1) the determination that you were responsible for the incorrect information which was provided and which resulted in the overissuance; and

        (2) the amount of the overissuance for which you are liable.

    (d) As a relative or friend of a deceased person, you have a right to a fair hearing if you have paid for the burial arrangements of such deceased person and your claim for reimbursement made pursuant to section 141 of the Social Services Law is denied by the local social services agency.

    (e) As a recipient of food stamp benefits, you do not have the right to a fair hearing to challenge the following:

        (1) the placement of your household on an alternate issuance system whereby you must personally pick-up your food stamp authorization to participate (ATP) or food stamp coupons; or

        (2) the length of time that your household is required to participate in an alternate issuance system; or

        (3) an adverse decision in an administrative disqualification hearing; or

        (4) a disqualification penalty imposed after you have waived your rights to an administrative disqualification hearing.

    (f) As an applicant or recipient you do not have the right to a fair hearing in all situations. For example, you do not have a right in the following situations:

        (1) the Department of Health has discontinued payment to the medical facility in which you are or had been residing because the facility has been decertified from participation in the Medical Assistance Program; or

        (2) your physician has ordered a change in the level of care being provided to you; or

        (3) a utilization review committee has ordered a higher level of care; or

        (4) the sole issue involving your receipt of medical assistance is a federal or state law requiring an automatic change which adversely affects some or all recipients; or

        (5) you are complaining about the amount of any lien taken by a social services agency; or

        (6) a local social services agency has demanded restitution, in accordance with the provisions of section 104 or 106-b of the Social Services Law, of public assistance paid, other than by a reduction of the public assistance grant; or

        (7) you are complaining about the amount of a child support payment which is passed-through to you; or

        (8) your services have been discontinued as a result of a court order, or the court order which required the provision of services has expired; or

        (9) you are a member of a class of public assistance recipients for whom either State or federal law requires an automatic grant adjustment, unless the reason for your appeal is the incorrect computation of your grant;

        (10) you are a foster family care services recipient, a foster family caregiver, or a respite caregiver pursuant to section 505.29 of this Title, and a sponsoring agency terminates the foster family caregiver's or the respite caregiver's authority to provide foster family care services or a social services district or the Office of Child and Family Services or the Department of Health terminates its contract with a sponsoring agency; or

        (11) you have been sent a request for contact notice in order to verify or clarify information during your food stamp certification period; or

        (12) you have been sent a notice of missed interview informing you that you have missed a scheduled food stamp eligibility or recertification interview and advising you that it is your responsibility to reschedule the interview

    (g) If you are an institutionalized spouse or a community spouse, as defined in section 360-4.10 of this Title, and a determination has been made on an application for medical assistance for the institutionalized spouse, you have a right to a fair hearing to challenge:

        (1) the amount of the community spouse monthly income allowance; and/or

        (2) the amount of monthly income determined to be otherwise available to the community spouse; and/or

        (3) the amount of resources attributed to the community spouse or to the institutionalized spouse; and/or

        (4) the amount of the community spouse resource allowance.

    (h) You have a right to a fair hearing if you are a resident of a tier II facility and you have been involuntarily discharged from the shelter after having requested and participated in a hearing, held by the facility or by the social services district in which the facility is located, to determine whether you should be involuntarily discharged. If you do not request and participate in such a hearing you do not have a right to a fair hearing.

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