Homebound Fair Hearing

by Gene Doyle, LMSW

In Varshavsky v Perales, Index No. 40767/91 (Sup. Ct. New York Co. March 5, 1992), affd. 202 A.D.2d 155 (1st Dept. 1994), the court certified a statewide plaintiff class, consisting of

"all applicants for and recipients of public assistance benefits residing in New York State:

     "a) who have requested or will request administrative hearings, or who would request or would have requested administrative hearings but for transportation difficulties; and

     "b) who, because of mental or physical disabilities, could not or cannot travel to or participate in an administrative hearing at a central hearing location without substantial hardship or medical detriment; and

     "c) whose hearing either had not been held on or before November 1, 1990, or whose hearing has been held on or after November 1, 1989 and did not result in a fully favorable decision or fully favorable outcome upon remand by defendants to the local agency before, during, or after the hearing;"

Id. at p. 4.

To find reported decisions, see "Legal Research."

In the same March 5, 1992 Varshavsky Order, the defendants were preliminarily "enjoined from holding hearings for members of the certified plaintiff class except as set forth in the order." Id. at p. 4. The defendants were also enjoined from "dismissing any hearing as abandoned, or terminating the 'aid-continuing' status of any hearing" for class members "at a site other than the appellant's home . . . ." Id. at ¶ 9 (at p. 11).

Non-Aid-Continuing Fair Hearings

These appeals involve requests

     "(i) to contest the termination, suspension or reduction in benefits or services, where the appellant does not or will not have 'aid continuing' status because she or he requested the hearing more than 10 days after the date of the notice, or

      "(ii) to contest the denial of an application for or an increase in benefits, services, equipment or supplies, or for any other issue for which "aid continuing" status would not be provided pursuant to 18 NYCRR § 358-3.6."

Id. at ¶ 1(b)(i) and (ii) (p. 5)

For these appeals,

"defendants shall hold a home hearing . . . within 45 days of the request for such hearing, . . . unless prior to that date:

     "(a) defendants have assigned full 'aid-continuing' status effective beginning 45 days after the date of the hearing request . . . , or

     "(b) each of the issue(s) for which the hearing was requested has (have) been or is (are) resolved fully in the plaintiff class member's favor by any of the following:

     "(i) after conference or redetermination by the local agency on remand from defendants before the requested hearing is held or decided, or

     "(ii) by defendants' decision without a hearing, or

     "(iii) by decision after a 'speaker-phone hearing' in accordance with paragraph (5) herein."

Id. ¶ 2(a) and (b) (at p. 6).

Aid-Continuing Fair Hearings

For aid-continuing appeals, including appeals for which aid-continuing has been directed as of the 45th day after the Fair Hearing has been requested, pursuant to ¶ 2(a) (at p. 6), the 45-day time limit for conducting a home hearing does not apply. For these appeals, a "speaker-phone" hearing will initially be held.

A home hearing will be held

"if a decision after a 'speaker-phone' hearing is less than 'fully favorable' as defined in paragraph (1)(c) herein, or if the speaker-phone hearing is not or cannot be held for any reason including but not limited to the appellant's lack of a telephone or inability to communicate by phone[.]"

Id. ¶ 9(c)(i) (at p. 12).

A speaker-phone hearing is defined as

"a hearing at which the Administrative Law Judge and agency representative participate in person at the central hearing site, the appellant participates by speaker-phone from his or her home, and the appellant's representative, if any, participates at his or her choice of the central hearing site or the appellant's home" (emphasis supplied).

Id. ¶ 5 (at p. 7).

A speaker-phone hearing must meet all 12 safeguards specified in ¶ 8 (at pp. 9-11), including

     "(j) Provisions assuring that if appellants do not answer the phone, that the phone hearing will be rescheduled."

Id. ¶ 8(j) (at p. 11).

Expedited Hearings

"[W]here the appellant is entitled to priority in scheduling pursuant to 18 N.Y.C.R.R. § 358-3.2(b), defendants shall schedule the speaker-phone hearing, and if required by this Order the home hearing, on a priority basis pursuant to 18 N.Y.C.R.R. § 358-3.2(b) and 358-5.2." Id. ¶ 4 (at p. 7).

OTDA Monitoring of Remands

"[A] decision after speaker-phone hearing which reverses the contested agency determination and remands any issue of the hearing to the local agency for redetermination, conference, or additional investigation is not 'fully favorable' unless the outcome after remand is fully favorable on all issues. Defendant shall retain jurisdiction over such decisions and monitor the outcome on remand. If the outcome is less than fully favorable, defendant shall schedule a home hearing without requiring the class member to request another hearing to contest the less than fully favorable outcome on remand."

Id. ¶ 2(c) (at pp. 6-7).

Information About Phone and Home Hearings

OTDA's Office of Administrative Hearings (OAH) must inquire and inform all persons, who request a Fair Hearing or who seek to adjourn a Fair Hearing, of the availability of transportation assistance to centralized hearing sites, "of a speaker-phone hearing if the appellant is unable to travel," and "of a home hearing if a speaker-phone hearing is not feasible or if the speaker-phone hearing results in an adverse decision." Id. at ¶¶ 10 and 11 (at pp. 12-14).

OAH is also required to

"identify all hearings requested by those members of the plaintiff class which meet all of the criteria specified in paragraph (1) except that a home hearing was not expressly requested, but instead an oral or written statement was made by or on behalf of the plaintiff to any of defendant's employees indicating that the plaintiff could not travel to the hearing due to physical or mental impairment."

Id. ¶ 6 (at p. 8).

Advocacy Tip

Upon requesting a "homebound" Fair Hearing, the Office of Administrative Hearings (OAH) of the New York State Office of Temporary Assistance (OTDA) will send you its "Letter 15," which will ask you for medical verification. You will need your health care provider to give you a note, which explains why you cannot attend a Fair Hearing at the centralized hearing site. Or you can ask your health care provider to complete a simple form. If you live in New York City, use this form. Outside of New York City, use this form.

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