Access to Appellants' Case Records Before and During Fair Hearings

by Gene Doyle, LMSW

Federal and state regulations require that appellants and their representatives have access to their case records at any time prior to and during their Fair Hearings. See 45 CFR § 205.10(a)(13)(i); 42 CFR § 431.242(a); 7 CFR § 273.15(p)(1); 18 NYCRR §§ 358-3.7(a)(1) and 358-4.3(b)(1).

These regulations have been uniformly held to require full and complete disclosure of a case record to a Fair Hearing appellant. See Yaretsky v Blum, 592 F.2d 65, 68 (2d Cir. 1979); Areizaga v Quern, 590 F.2d 226, 227 (7th Cir. 1978); Page v Preisser, 585 F.2d 336 (8th Cir. 1978); Bizjak v Blum, 490 F.Supp. 1297, 1303 (N.D.N.Y. 1980); Feld v Berger, 424 F.Supp. 1356, 1363 (S.D.N.Y. 1976); Matter of Dunbar v Toia, 45 N.Y.2d 764 (1978); Matter of Vetter v Poland, 72 A.D.2d 776 (2d Dept. 1979); Matter of Del Monte v Lascaris, 55 A.D.2d 1043 (4th Dept. 1977); Matter of Wishik v Dumpson, 55 A.D.2d 593 (1st Dept. 1976); Matter of Nembhard v Turner, 183 Misc.2d 73 (Sup. Ct. New York Co. 1999); Martinez v Turner and Amankwah v Turner, N.Y.L.J. May 14, 1999 (Sup. Ct. New York Co.) Matter of Gray v Buscaglia, 91 Misc.2d 567 (Sup. Ct. Erie Co. 1977). To find reported decisions, see "Legal Research."

Bizjak v Blum, 80-CV-381, Consent Decree (N.D.N.Y. July 24, 1981)

On June 2, 1980, the United State District Court for the Northern District of New York certified

a class of plaintiffs to be composed of all persons within New York State who presently have or will in the future have a "fair hearing" request pending on issues relating to the operation of either the [Aid to Families with Dependent Children (AFDC)] or [Medical Assistance (MA)] programs.

Bizjak v Blum, 490 F.Supp. 1297, 1301 (N.D.N.Y. 1980).

The court also issued a classwide preliminary injunction, directing the Commissioner of the New York State Department of Social Services (NYSDSS), inter alia, to

     "(a) inform all AFDC and MA 'fair hearing' appellants of their right to complete access to the entire contents of their case records at a reasonable time prior to and during the 'fair hearing' and to (b) afford all AFDC and  MA 'fair hearing' appellants the opportunity to examine the entire contents of their case files at a reasonable time in advance of and during their 'fair hearings'."

Bizjak, 490 F.Supp. at 1303.

In a subsequent Consent Decree entered in Bizjak v Blum, 80-CV-381 (N.D.N.Y. July 24, 1981), which ordered:

     "5. From the date of this decree, defendant Blum, her successors in office, and DSS are enjoined from failing to comply fully with the requirements set forth in [45 CFR] section 205.10(a)(13)(i) and [42 CFR] section [4]31.242 in operating fair hearings. Defendant Blum, her successors in office, and DSS shall hence forth afford all AFDC and  MA fair hearing appellants the opportunity to examine the contents of their case files  at a reasonable time in advance of and  during their fair hearings, in accordance with federal law. Attached hereto as Exhibit "A" is a proposed ADM which defendant Blum shall issue as final, which ADM complies with and expresses the terms of this decree. Defendant Blum, her successors in office and DSS shall hence forth make reasonable efforts to insure compliance with said ADM and this decree by any local agency.

Bizjak Consent Decree, ¶ 5 (at p. 4).

Administrative Directive 81 ADM-40 and Local Commissioners Memorandum 15-LCM-01

The draft Administrative Directive, appended as Exhibit A to the Bizjak Consent Decree, was subsequently issued as 81 ADM-40.

Pursuant to 81 ADM-40 § III (at p. 2),

     "The 'case file' or 'case record'  for access purposes  includes all paper records and machine readable data that can readily be converted to a comprehensible paper record relating to an individual's receipt of Home Relief, Aid to Dependent Children, Medical Assistance, Emergency Assistance, Child Support Enforcement or Title XX services.  A simple test for whether a particular file is covered is whether it is filed under the name of the requesting individual. Access to the records shall be granted only to the person to whom they pertain or his or her authorized representative.

*  *  *

     "Any records which are in fact maintained by the district with respect to an individual are subject to access by that individual whether or not the records are required to be maintained."

These requirements were repeated in Local Commissioners Memorandum 15-LCM-01.

Rodriguez v Blum, 79 Civ. 4518, Stipulation and Judgment (S.D.N.Y. February 25, 1983)

In the Stipulation and Judgment entered in Rodriguez v Blum, 79 Civ. 4518 (S.D.N.Y. February 25, 1983), a citywide plaintiff class was certified,

"consisting of all present or former recipients of benefits residing in the City of New York who had a fair hearing on or after December 1, 1980 to challenge an agency notice to reduce, discontinue or restrict benefits or who request a fair hearing on or after the effective date of this stipulation to challenge an agency notice to reduce, discontinue or restrict benefits[.]"

Id. ¶ 10 (at pp. 4-5).

The term, "benefits," is defined in ¶ 1(e) (at p. 2) of the Rodriguez Stipulation and Judgment as "Aid or care received from the agency under the Aid to Families with Dependent. Children (AFDC) or Home Relief (HR) programs."

The term, "agency," is defined in ¶ 1(a) (at p. 1) of the Rodriguez Stipulation and Judgment as

"defendant Stanley Brezenoff, the Commissioner of the City of New York Department of Social Services at the time the action was commenced, his successors, and the City of New York Department of Social Services and its agencies and employees[.]"

The Rodriguez Stipulation and Judgment requires at ¶¶ 2-4 (at p. 3) that

     "2. The agency shall provide an appellant's complete relevant case record at a fair hearing.

     "3. If the agency appears at a fair hearing without an appellant's complete relevant case record in those cases covered by the class as defined in paragraph 10 of this stipulation, it shall withdraw its notice.

     "4. Where the agency withdraws its notice because it failed to have an appellant's complete relevant case record at the fair hearing, it may reissue its notice, provided it has first procured and reviewed the appellant's complete relevant case record. The agency's new notice shall clearly advise the appellant that it is reissuing its earlier notice, and that it is doing so after procuring and reviewing the appellant's complete relevant case record. A copy of the format of this notice, prior to promulgation, shall be sent by the agency to plaintiffs' attorneys for their approval."

The terms, "complete relevant case record" and "case record," are defined in ¶ 1(f) and (g) (at p. 2) of the Rodriguez Stipulation and Judgment as:

     "(f) 'Complete relevant case record': That portion of an appellant's case record maintained by the agency in each of the following areas pertinent to the issue or issues at the hearing:

     "(i) Face-to-face recertification,

     "(ii) Income maintenance,

     "(iii) Employment;

     "(g) 'Case Record': All paper records and machine readable data which can readily be converted to a comprehensive paper record relating to an appellant's receipt of AFDC or HR[.]"

See "Case Record Production at Fair Hearings."

Annunziata v Blum, 81 Civ. 302 (S.D.N.Y. February 25, 1983)

In the Stipulation and Judgment entered in Annunziata v Blum, 81 Civ. 302 (S.D.N.Y. February 25, 1983), a citywide plaintiff class was certified,

"consisting of all present or former recipients of benefits residing in the City of New York who had a fair hearing on or after December 1, 1980 to challenge an agency notice to reduce, discontinue or restrict benefits or who request a fair hearing on or after the effective date of this stipulation to challenge an agency notice to reduce, discontinue or restrict benefits." 

Id. ¶ 8 (at p. 4).

The term, "benefits," is defined in ¶ 1(e) (at p. 2) of the Annunziata Stipulation and Judgment as "Aid or care received from the agency under the Medical Assistance (Medicaid) program[.]"

The term, "agency," is defined in ¶ 1(a) (at p. 1) of the Annunziata Stipulation and Judgment as

"defendant Stanley Brezenoff, the Commissioner of the City of New York Department of Social Services at the time the action was commenced, his successors, and the City of New York Department of Social Services and its agencies and employees[.]"

The Annunziata Stipulation and Judgment requires at ¶¶ 2-4 (at pp. 2-3) that

     "2. The agency shall provide an appellant's case record at a fair hearing.

     "3. If the agency appears at a fair hearing without an appellant's case record, in those cases covered by the class as defined in paragraph 8 of this stipulation, it shall withdraw its notice.

     "4. Where the agency withdraws its notice without prejudice because it failed to have an appellant's case record at the fair hearing, it may reissue its notice only after procuring and reviewing the appellant's case record. The agency's new notice shall clearly advise the appellant that it is reissuing its earlier notice, and that it is doing so after procuring and reviewing the appellant's case record. A copy of the format of this notice, prior to promulgation, shall be sent by the agency to plaintiffs' attorneys for approval."

The term, "case record," is defined in ¶ 1(f) (at p. 2) of the Annunziata Stipulation and Judgment as:

     "(f) 'Case Record': All paper records relating to an appellant's notice and machine readable data which can readily be converted to a comprehensive paper record relating to an appellant's receipt of Medicaid[.]"

See "Case Record Production at Fair Hearings."

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