Inadequate Notice: Threshold Issue at Fair Hearing

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, "Inadequate Notice" (at pp. 1-2), Mr. Hanks stated that:

    "The content requirements for notices of intent set forth in Part 358 reflect concern for appellants' due process rights. In every hearing involving a notice of intent, the sufficiency of the notice is a threshold issue. Raising the issue is not an affirmative responsibility of the appellant. Where a hearing involves a notice of intent, it is the responsibility of the social services district to appear with a copy of the notice of intent. If the social services district cannot present the notice of intent, it must withdraw its intended action. When the social services district does present the notice of intent, the hearing officer must review the sufficiency of the notice to assess whether it complies with regulatory requirements and whether any deficiencies in the notice impinge on the appellant's due process rights. This assessment must include consideration of the notice's deficiencies, the issues for review, the appellant's circumstances, and the need to direct specific relief.  This assessment should be conducted on the record and, where appropriate, reflected in the decision. The hearing officer must determine whether to find a notice void, require the social services district to provide additional documentation, or grant a recess or adjournment on the appellant's behalf.

     "In evaluating the adequacy of a notice, the hearing officer should consider if the appropriate notice was sent and if the explanation of the district's intended action is understandable by the particular appellant. Where the social services district's determination was based on a budget computation, a copy of the budget or the basis for the computation must be provided in or with the notice as required by 18 NYCRR Section 358-2.2n. Failure to meet this regulatory requirement makes a notice of intent void. A notice that fails to provide any reason or explanation for an intended action is void. A notice that cites the wrong regulation as justification for the intended action, while deficient, may not be void. In every case involving a deficient notice, the hearing officer must ensure that the deficiency does not result in harm to the appellant.

     "Pursuant to Section 22 (4) of the Social Services Law, fair hearings must be requested within 60 days (90 days for food stamps) of the date of the action or failure to act by a social services district which is being appealed. Where a hearing involves a notice of intent, any defect in the notice tolls the statute of limitations (Bryant).  When the statute of limitations is tolled, the underlying merits of the case must be addressed unless it is determined that the defects in the notice are so serious that the notice is void. This kind of determination must be made on a case by case basis as described above.

     "The implementation of WMS generated notices of intent (scheduled for early 1993) should greatly improve the quality and consistency of notices. Until such improvements occur, hearing officers must scrutinize notices of intent for sufficiency, ensure appellants are not disadvantaged by notice defects, and void seriously deficient notices" (original emphasis).

Note: The regulation which requires budget computations to accompany notices was subsequently renumbered from 18 NYCRR § 358-2.2(n) to § 358-2.2(a)(14). Mr. Hanks' reference to "(Bryant)" pertains to Matter of Bryant v Perales, 161 A.D.2d 1186 (4th Dept. 1990), lv. denied 76 N.Y.2d 710 (1990). To obtain these reported decisions, see "Legal Research."

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, "Inadequate Notice" (at pp. 1-2), Mr. Hanks stated that:

     "The content requirements for notices of intent set forth in Part 358 reflect concern for appellants' due process rights. Where a hearing involves a notice of intent, the hearing officer must review the sufficiency of the notice to access whether it complies with regulatory requirements and whether any deficiencies in the notice impinge on the appellant's due process rights. This assessment must include consideration of the notice's deficiencies, the issues for review, the appellant's circumstances, and the need to direct specific relief. This assessment should be conducted on the record and, where appropriate, reflected in the decision. The hearing officer must determine whether to find a notice void, require the social services district to provide additional information, or grant a recess or adjournment on the appellant's behalf.

     "In evaluating the adequacy of a notice, the hearing officer should consider if the appropriate notice was sent and if the explanation of the district's intended action, contained in the notice, is understandable by the particular appellant. A notice that fails to provide any reason or explanation for an intended action is void. A notice that cites the wrong regulation as justification for the intended action or an unclear explanation, while deficient, may or may not be void. In every case involving a deficient not ice, the hearing officer must ensure that the deficiency does not result in harm to the appellant."

For examples of Fair Hearing Decisions, which have found notices to be defective, read the article: Reversal of Agency Determinations Due to Defective Notices.

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