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Article ID: 52
Last updated: 14 May, 2016
by Gene Doyle, LMSW How to Request a Fair Hearing Adjournment To request an adjournment of a scheduled Fair Hearing, read the instructions on the scheduling notice, called the Notice of Fair Hearing (OAH-457), or go to the Request an Adjournment or Reopening website of the New York State Office of Temporary and Disability Assistance (OTDA). Be sure to read OTDA's Frequently Asked Questions (FAQs). OTDA cautions that written requests for adjournments submitted online, or by mail or fax, less than seven days before the scheduled hearing date may not allow sufficient time for proper processing and for OTDA's written response. The alternatives to a written request for adjournment are: • call the OAH "adjournment line" at: (877) 209-1134, or • appear in person at OAH's Brooklyn or Albany offices. Note that the OAH adjournment line (877-209-1134) is often busy or requires a long waiting time before being able to actually speak with OAH staff (known as "legal affairs specialists"). In Fishman v Daines, 743 F.Supp.2d 127, 147 (E.D.N.Y. 2010), the court noted that "based on data obtained from the OTDA, . . . in a nine-month period between November 2008 and August 2009, only 4.73% of calls to the [adjournment] line were successful." Advocacy Tip: Be sure to keep notes on the date, time and outcome of each of your attempts to call the OAH adjournment line (877-209-1134). For example: "Called on 3/17/16 at 10:47 a.m. - line busy; called on 3/17/16 at 11:23 a.m. - was on hold for 37 minutes and had to hang up before speaking with anyone." These records will help to establish "good cause" if you miss the Fair Hearing. If you cannot reach OAH staff by telephone, send a written adjournment request even if the hearing is less than seven days away. Describe in detail the problems you had in trying to call for an adjournment. Establishing Good Cause for Adjourning a Fair Hearing The state regulation, 18 NYCRR § 358-5.3(a), requires that there by a good reason (known as "good cause") for adjourning a Fair Hearing. This "good cause" requirement is consistent with federal regulations governing the Temporary Assistance to Needy Families (TANF) program [45 CFR § 205.10(a)(5)(v)] and the Medical Assistance (Medicaid) program [42 CFR § 431.223(b)] but not the Supplemental Nutrition Assistance Program (SNAP) [7 CFR § 273.15(c)(4)]. See Adjournment of SNAP Related Fair Hearings below. The OAH staff have several guidelines to assist them in determining whether the reason given for adjourning a Fair Hearing meets the "good cause" requirement: • Disposition Codes Numerical Reference Guide • Disposition Codes Reference Guide Remember that the above documents, including Adjournment Tips, are written for OAH staff, not appellants or their representatives. Nevertheless, these documents give some insight into the kind of adjournment reasons which should qualify as "good cause." According to OAH's Disposition Codes Reference Guide "Good cause is defined as unusual,unexpected, or unavoidable circumstances beyond the control of the appellant, such as: a death in the immediate family, serious illness, unavoidable temporary inability to obtain counsel or representation, or inclement weather that prevents all reasonable travel. It does not include any event that can be prevented or mitigated by the timely taking of reasonable action" (emphasis supplied). The two reference guides, listed above, give a list of "good cause" reasons for adjourning a Fair Hearing. These guides are color coded, indicating the level of OAH staff who are authorized to approve specific reasons for adjournments. The color codes are as follows: BLACK: GENERAL USE BY ALL Adjournment of SNAP Related Fair Hearings The federal regulation, which governs the adjournment (also known as postponement) of SNAP-related Fair Hearings, is 7 CFR § 273.15(c)(4), which reads: "(4) Household requests for postponement. The household may request and is entitled to receive a postponement of the scheduled hearing. The postponement shall not exceed 30 days and the time limit for action on the decision may be extended for as many days as the hearing is postponed. For example, if a State level hearing is postponed by the household for 10 days, notification of the hearing decision will be required within 70 days from the date of the request for a hearing" (emphasis supplied). On April 27, 2016, OTDA issued OAH Procedures Transmittal 16-03 to announce: "Effective immediately and in accordance with federal regulation 7 CFR 273.15(c)(4) governing the postponement of Fair Hearings involving the Supplemental Nutrition Assistance Program (SNAP), appellants are entitled to one postponement of a scheduled fair hearing. Any subsequent requests for postponement require a showing of good cause. 18 NYCRR Part 358-5.3(a) will be amended to reflect this change. * * * "This directive applies to any fair hearing which includes a SNAP issue." New York now joins the majority of states, which recognize that a SNAP appellant has the right to at least one Fair Hearing adjournment without having to establish good cause for needing the adjournment. See, for example:
The Right to a Homebound Fair Hearing If the appellant cannot travel to or participate in a Fair Hearing at a centralized hearing site "without substantial hardship or medical detriment," ask that the hearing be adjourned and reclassified as a "Homebound Fair Hearing." Dismissal of a Fair Hearing Request as Abandoned If a Fair Hearing has not been adjourned and neither the appellant nor the appellant's representative appears at a scheduled Fair Hearing, read the article: Dismissal of a Fair Hearing Request. Reopening Dismissed Fair Hearing Requests If a Fair Hearing request has been dismissed as abandoned, read the article: Requesting the Reopening of a Dismissed Fair Hearing Request. Please read the Disclaimer.
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