Requesting a Fair Hearing

by Gene Doyle, LMSW

I. How to Request a Fair Hearing

To request a Fair Hearing, read the instructions on the notice, which you want to appeal, or go to OTDA's Fair Hearing Request website. Be sure to read OTDA's Frequently Asked Questions (FAQs).

II. Continuation of Assistance, Benefits or Services

If assistance, benefits or services are being stopped, reduced or restricted, be sure to request your hearing before the "effective date" on the notice in order to qualify for "aid-continuing."

III. For Those Unable to Travel to or Participate in a Fair Hearing at a Centralized Site

If the appellant cannot travel to or participate in a Fair Hearing at a centralized hearing site "without substantial hardship or medical detriment," ask for a "Homebound Fair Hearing."

IV. Time Limits for Requesting a Fair Hearing

The deadline for requesting a Fair Hearing varies, depending on the program or the determination. The time limits for requesting a Fair Hearing are found in 18 NYCRR § 358-3.5(b):

     "(b)(1) A request for a fair hearing must be made within 60 days after the social services agency's determination, action, or failure to act about which you are complaining except as provided in paragraphs (2) and (3) of this subdivision for fair hearings relating to food stamp benefits, and paragraph (4) relating to HEAP benefits and paragraph (5) relating to involuntary discharges from tier II facilities, and paragraph (6) relating to determinations of exemptions from work activities due to disability. Where the social services agency's action is based on a change in State or Federal law requiring automatic public assistance grant adjustments for classes of recipients, a request for a fair hearing must be made within 60 days after the changed grant becomes available to you.

     "(2) A request for a fair hearing to complain about any action by the social services agency affecting your food stamp benefits, including a loss of food stamp benefits, must be made within 90 days after the determination, action or failure to act about which you are complaining. Action includes a denial of a request for restoration of any benefits lost more than 90 days but less than one year prior to the request for restoration. Where the social services agency's action is the result of a mass change, a request for a fair hearing must be made within 90 days after the changed level of benefits become available to you.

     "(3) A request for a fair hearing to dispute the current level of food stamp benefits granted to your household must be made during the food stamp certification period.

     "(4) A request for a fair hearing to review the denial of, the failure to act on an application for, or the adequacy of a HEAP benefit must be made no later than 60 days after the mailing of the notice. Notwithstanding the provisions of this Part and Part 393 of this Title, no person shall be certified as eligible to receive a HEAP benefit as a result of a fair hearing if no Federal funds are available for such purpose. Federal funds are available for the provision of a HEAP benefit until the end of the Federal fiscal year succeeding the end of the HEAP program year for which such benefit is claimed. The issuance of a HEAP benefit in compliance with a fair hearing decision can only be provided if the hearing request is made during the period of time when Federal funds are available.

     "(5) A request for a fair hearing to review the involuntary discharge of a resident from a tier II facility after the resident has requested and participated in a hearing, held by the facility or social services district in which the facility is located, must be made no later than 30 days after the decision of the facility or social services district is rendered.

     "(6) A request for a fair hearing relating to determinations of exemptions from work activities due to disabilities must be made within 10 days of the agency's notice of determination pursuant to section 385.2(d)(7)(i) of this Title.

     "(7) If the last day for requesting a fair hearing falls on a weekend or holiday, a hearing request postmarked or received by OAH on the day after the weekend or holiday will be considered as timely received" (emphasis supplied).

There are situations where a Fair Hearing request can still be made even though the deadline for appeal (also called the statute of limitations) has passed. Under the following circumstances, the statute of limitations may be "tolled," meaning that the time limit for requesting a Fair Hearing may not have expired:

V.A. Inadequate Notice

Every notice must meet the adequate notice standards found in 18 NYCRR § 358-2.2. Any shortcoming, called a defect, in the notice can toll the statute of limitations. Read the article: Inadequate Notice: Threshold Issue at Fair Hearing.

V.B. Non-Receipt of a Notice

If an individual, to whom the notice was addressed, did not actually receive the notice, the time limit for requesting a Fair Hearing does not begin until a copy of the notice is received. For example, if an application is denied but the applicant did not receive a notice of denial, a Fair Hearing can still be requested months later even though the time limit for filing an appeal has long passed.

The burden of proof rests with the local social services district or other agency, which claims to have mailed the notice. Read the article: Non-Receipt of Notices or Other Mail.

V.C. Inability to Read, Understand and Act on a Notice in a Timely Manner

V.C.1. Individuals with Limited English Proficiency (LEP)

Read the article: Tolling the Time Limit for Requesting a Fair Hearing: Limited English Proficiency (LEP).

V.C.2. Individuals with Physical or Mental Impairments

Read the article: Tolling the Time Limit to Request a Fair Hearing: Physical or Mental Impairment.

Please read the Disclaimer.