Burden of Proof

by Gene Doyle, LMSW

In a December 11, 1996 memorandum to ALJs, Deputy General Counsel for Administrative Hearings Russell J. Hanks set forth OAH policy with respect to the development of an adequate Fair Hearing record and related matters. Under the heading, "Burden of Proof" (at p. 3), Mr. Hanks stated that:

     "18 NYCRR §358-5.9 provides that the social services agency has the burden of establishing that its determination was correct where the issue for the hearing involves the discontinuance, reduction or suspension of benefits or services. To meet its burden of proof, the agency must establish facts in support of the basis for the action as stated in the notice of discontinuance or reduction. For example, where the agency had determined to impose a sanction for failure to comply with work rules, the agency must produce evidence establishing the evidence of the appellant's willful failure to cooperate without good cause, or its determination cannot be affirmed.

    "The burden is on the appellant to establish that a denial of benefits was incorrect, or that the benefit level determined by the agency is inadequate.  When an appellant claims, for instance, that his or her benefits have been inadequate for a long period of time (e.g., 'since 1992'), the appellant should be questioned as to exactly how the assistance was inadequate, rather than requiring the agency's to establish that it was."

In a May 13, 1998 memorandum to ALJs, Deputy General Counsel for Administrative Hearings Russell J. Hanks set forth OAH policy with respect to the burden of proof in employment cases to ensure that it comports with regulatory and judicial requirements. Mr. Hanks stated that

     "Where the agency has determined to impose a sanction for failure to comply with work rules, the agency must produce evidence establishing the elements of the appellant's willful failure to cooperate without good cause or its determination cannot be affirmed. The agency's burden. however, is limited to coming forward with the basic components of a work rules violation, i.e., the failure to report, and the absence of any good cause reason presented by the appellant.

     "Under 18 NYCRR §351.26, the applicant or recipient is responsible for notifying the local social services district of the reason for failing to comply with an eligibility requirement and for furnishing evidence to support any claim of good cause. The agency must review the information and evidence provided by the appellant, if any, and determine whether the information and evidence support a finding of good cause. Accordingly, individuals who contend they have good cause have the burden of demonstrating good cause. (See Sirota v. Hammons and Wing (Sup. Ct., New York County, April 21, 1997)."

Note: Sirota was affirmed by the Appellate Division at 264 A.D.2d 343 (1st Dept. 1999).

But see General Information System (GIS) Message 05 TA/DC032, which was issued in response to the decisions in Earl v Turner, 303 A.D.2d 282 (1st Dept. 2003), lv. denied 100 N.Y.2d 506 (2003) and Matter of Dost v Wing, 16 A.D.3d 497 (2d Dept. 2005). To obtain these reported decisions, see "Legal Research."

GIS Message 05 TA/DC032 has been cited in thousands of Fair Hearing Decisions found in OAH's Fair Hearing Decision Archive. For search tips, see "Effectively Searching OAH's Fair Hearing Decision Archive."

Changes to Employment Program Requirements in New York City

Effective December 18, 2015

OAH's Jim Ryan issued a December 30, 2015 memorandum to announce the enactment of Chapter 562 of the Laws of 2015.

The amendments add a new Section 341-a, which establishes a “re-engagement process” in New York City for a recipient of Public Assistance to avoid a pro-rata reduction in benefits for non-compliance with employment requirements. Additionally, amendments are made to Social Services Law Section 341 regarding the conciliation process; a new Section 342-a is added regarding sanctions for non-compliance with employment requirements in New York City; and amendments are made to Social Service Law Section 342 exempting New York City from the sanction provisions in this section. These amendments went into effect immediately upon the Governor signing the bill on December 18, 2015. [Emphasis added]

*  *  *

     Social Services Law Section 341-a(2)(a) provides that if a participant has failed or refused
to comply with employment requirements and the district (HRA) has determined that the participant
is not “exempt from such requirements and has verified that appropriate child care, transportation,
and accommodations for disability were in place at the time of such failure or refusal, the social
services district shall issue a re-engagement notice in plain language indicating that such failure or
refusal has taken place and of the right of such participant to avoid a pro-rata reduction in public
assistance benefits through the re-engagement process.”

     The “re-engagement process” allows a participant to agree to “comply with the
requirements of this title consistent with any medical condition which may limit the individual’s
ability to participate in work activities, by notifying the district that he or she has become exempt
from the requirements of this title, or by resolving the reasons for such failure or refusal at a
conciliation conference.”

     The re-engagement notice must indicate “the specific instance or instances of willful refusal
or failure to comply without good cause with the requirements of this title and the necessary
actions that must be taken to avoid a pro-rata reduction in public assistance benefits and the
district has verified that appropriate child care, transportation, and accommodations for disability
were in place at the time of such failure or refusal.” The re-engagement notice must also include
an explanation in “plain language” of what would constitute good cause for non-compliance and
“examples of acceptable forms of evidence that may warrant an exemption from work activities,
including evidence of domestic violence, and physical or mental health limitations that may be
provided at the conciliation conference to demonstrate such good cause for failure to comply with
the requirements of this title.”

     Section 341-a(2)(a)(1) further provides that “unless as part of the re-engagement process
the participant does not agree to comply, has not become exempt or the district determines as a
result of the conciliation conference that such failure or refusal was willful and without good cause,
no further action shall be taken.”

     Section 341-a(2)(a)(2) provides that if the participant does not contact the district within ten days of the re-engagement notice, the district shall make a finding of whether the failure or refusal
to comply was “willful and without good cause and shall consider any evidence in the possession
of the district indicating that the participant has good cause and if the participant is otherwise
participating in work activities, there shall be no finding of willfulness without good cause
based on a single appointment or infraction.” [Emphasis added]

     Section 341-a(2)(b) provides that if the district (HRA) determines that the failure was willful and without good cause, and the individual is not exempt from employment requirements, then a ten-day notice of discontinuance or reduction of Public Assistance is sent. The notice “shall verify that appropriate child care, transportation, and accommodations for disability were in place at the time of such failure or refusal, and specify the necessary actions that must be taken to avoid a pro-rata  reduction in public assistance benefits, including agreeing to comply with the requirements of this  title consistent with any medical condition which may limit the individual’s ability to participate in work activities or notifying the district that he or she has become exempt from the requirements of this title and the right to a fair hearing relating to such discontinuance or reduction.”

     Section 341-a(3)(a) provides that OTDA shall “establish in regulation a conciliation procedure for the resolution of disputes related to an individual’s participation in programs pursuant to this title.”

     Section 341-a(5) provides that “participants whose failure to comply has continued for thirty days or longer” shall be given a “written reminder of the option to end a sanction by terminating the failure to comply as specified in subdivision two of this section.” This notice shall advise that “the participant may immediately terminate the sanction by either agreeing to comply with the requirements of this title consistent with any medical condition which may limit the individual’s ability to participate in work activities or notifying the district that he or she has become exempt from the requirement of this title.”

     Section 341-a(6) provides that no notice shall be issued “unless it has been determined that the individual is not exempt from the requirements of this title and has determined that appropriate child care, transportation, and accommodations for disability were in place at the time of such failure or refusal to comply with the requirements of this title and no action shall be taken pursuant to this section for failure to participate in the program or refusal to accept employment if: (a) child care for a child under age thirteen (or day care for any incapacitated individual living in the same home as a dependent child) is necessary for an individual to participate or continue participation in activities pursuant to this title or accept employment and such care is not available and the social services district fails to provide such care; (b)(1) the employment would result in the family of the participant experiencing a net loss of cash income; provided, however, a participant may not claim good cause under this paragraph if the social services district assures that the family will not experience a net loss of cash income by making a supplemental payment; (2) net loss of cash income results if the family's gross income less necessary work-related expenses is less than the cash assistance the participant was receiving at the time the offer of employment is made; or (c) the participant meets other grounds for good cause set forth by the department in its implementation plan for this title which, at a minimum, must describe what circumstances beyond the household's control will constitute "good cause".

     Social Services Law Section 341 is amended by adding a new subdivision (7) exempting New York City from complying with the conciliation process described in this Section.

     Social Services Law Section 342-a(3) provides that “in the case of an applicant for or recipient of public assistance whom the district has determined is not exempt from the requirements of this title  and who is a parent or caretaker relative of a dependent child, the public assistance benefits otherwise available to the household of which such individual is a member shall be reduced pro-rata until the individual is willing to comply with the requirements of this title consistent with any medical condition which may limit the individual's ability to participate in work activities”.

     Social Services Law Section 342-a(4) provides that “in the case of an individual who is a member of a household without dependent children whom the district has determined is not exempt from the requirements of this title and who is applying for or in receipt of safety net assistance, the public assistance benefits otherwise available to the household of which such individual is a member shall be reduced pro-rata until the individual is willing to comply with the requirements of this title consistent with any medical condition which may limit the individual's ability to participate in work activities ceases”.

     Social Services Law Section 342-a(5) provides that “a recipient of public assistance whom the district has determined is not exempt from the requirements of this title and who quits or reduces his hours of employment without good cause or due to any medical condition which may limit the individual's ability to participate in work activities shall be considered to have failed to comply with the requirements of this article and shall be subject to the provisions of this section.”

     Social Services Law Section 342 is amended by adding a new subdivision (6) exempting New York City from complying with the durational sanction provisions in this section (original emphasis).

Id. at pp. 1, 2-4.

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