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

by Gene Doyle, LMSW and John Castellano, Esq.

Impaired functional capacity can prevent disabled appellants from timely requesting Fair Hearings. To understand the circumstances under which a physical or mental impairment can toll a statute of limitations, it is useful to look at social security case law.

Second Circuit Case Law in the Context of Social Security Appeals

In a trio of decisions involving untimely appeals of Supplemental Security Income (SSI) determinations, the United States Court of Appeals for the Second Circuit has charted a course for assessing the tolling effect of an appellant's mental impairments.

In Canales v Sullivan, 936 F.2d 755, 759 (2d Cir. 1991), rehearing denied 947 F.2d 45 (2d Cir. 1991), the Court concluded, in the context of the time limit for commencing judicial appeals of final SSI determinations, that

"equitable tolling of the 60-day statute of limitations . . . may be warranted in cases where an SSI disability claimant fails to seek judicial review in a timely manner because of mental impairment (FN4). Where a claimant avers incapacity due to mental impairment during the 60-day period, the district court should permit the claimant to present evidence in support of this claim. If the claimant proves that she was incapacitated for any length of time during the 60-day period, then the district court can determine whether, considering all of the circumstances of the case, equitable tolling is warranted."

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"FN4. We disagree with the courts that have concluded that mental impairment cannot justify equitable tolling. See, e.g., Carter v Heckler, 588 F.Supp. 87, 90 (N.D. Ill. 1984); Palucis v Schweiker, 523 F.Supp. 199, 200-01 (W.D. Pa. 1981).

     "We also note that the Secretary has argued, in a Fourth Circuit case, that mental impairment was the critical factor that justified equitable tollinq in the Supreme Court decision of Bowen v City of New York, 476 U.S. 467. 90 L.Ed.2d 462. 106 S.Ct. 2022 (1986). See Hyatt v Heckler, 807 F.2d 376, 378 (4th Cir. 1986)."

In Canales, 936 F.2d at 758, the Second Circuit noted its approval and reliance on the decisions of other federal jurisdictions:

     "In Elchediak v Heckler, 750 F.2d 892 (11th Cir. 1985), the court acknowledged that an SSI claimant suffering from mental illness may raise a colorable due process claim when he asserts that his mental illness prevented him from proceeding from one administrative level to another in a timely fashion. Id. at 894. Although a federal court cannot ordinarily review the Secretary's denial of a claimant's request to reopen a claim, as it is not a final decision, see Califano v Sanders, 430 U.S. 99, 108, 51 L.Ed.2d 192, 97 S.Ct. 980 (1977); 42 U.S.C. § 405(g) (1988), if the claim raises a colorable constitutional issue, it is appropriate for judicial consideration. See Sanders, 430 U.S. at 109; Elchediak, 750 F.2d at 894. Moreover, a due process claim "seems peculiarly apropos in the context of Social Security disability benefit proceedings in which, as here, the very disability that forms all or part of the basis for which the claimant seeks benefits may deprive her of the ability to understand or act upon notice of available administrative procedures." Id. (quoting Parker v Califano, 644 F.2d 1199, 1203 (6th Cir. 1981)). A number of other courts are in accord with the Elchediak analysis. See Young v Bowen, 858 F.2d 951 (4th Cir. 1988); Parker, 644 F.2d 1199; Torres v Secretary, 475 F.2d 466 (1st Cir. 1973); Hines v Bowen, 671 F.Supp. 10 (D.N.J. 1987); Brittingham v Schweiker, 558 F.Supp. 60 (E.D. Pa. 1983); Kapp v Schweiker, 556 F.Supp. 16 (N.D. Cal. 1981)."

In Stieberger v Apfel, 134 F.3d 37, 40 (2d Cir. 1997), the Second Circuit revisited the issue from a different vantage point, recognizing a due process claim "based on notice rendered ineffective because of mental impairment." The court cautioned that a "claim of constitutionally defective notice" cannot rest "upon a generalized allegation, long after the fact, that the claimant was too confused to understand available administrative remedies." Rather, the claimant must make "a particularized allegation of mental impairment plausibly of sufficient severity to impair comprehension." Stieberger, 134 F.3d at 40-41.

In Byam v Barnhart, 336 F.3d 172, 182 (2d Cir. 2003), the Court overturned the District Court's restrictive reading of its prior precedents, finding that

     "The district court in this case interpreted Stieberger to hold that 'notice of an adverse benefits determination to an unrepresented claimant who is unable to comprehend it because of mental impairments may be constitutionally deficient,' and the court concluded that Byam's claim 'falls short of establishing "sufficient severity to impair comprehension" of the administrative process.' Byam v Massanari, No. 2:00-CV-149, at 13, 16 (quoting Stieberger, 134 F.3d at 41). However, the district court failed to make the further inquiry under Stieberger into whether the claimant could 'act upon notice.' Stieberger, 134 F.3d at 40 (quoting Canales, 936 F.2d at 758)."

The Second Circuit also rejected the lower court's reliance on assessments of the plaintiff's ability to function in a work setting in determining whether mental impairments prevented her from timely appealing an adverse SSI determination.

"The question was not whether Byam could understand and act upon instructions in the context of certain jobs, but whether she was impaired in her ability to understand and pursue administrative and legal procedures. 'Moderate limitations' in an employment context may be severe ones in understanding legal notice and filing requests for administrative and judicial review. Depression and social phobia might not prevent one from holding certain jobs, but they may impede one's ability to act on notice or go to a hearing. We do not think that employment assessments such as Dr. Hurley's are irrelevant to this question; indeed, they may be helpful to a fact-finder evaluating a due process claim, but they are neither sufficient nor dispositive."

Byam, 336 F.3d at 183.

The statute of limitations may thus be tolled if the appellant's mental impairment EITHER:

1. is of "sufficient severity to impair comprehension," Stieberger, 134 F.3d at 41, OR

2. "impede[s] one's ability to act on notice or go to a hearing." Byam, 336 F.3d at 183.

The Relevance of the Social Security Case Law in the Context of State Fair Hearings

Applicants for and recipients of assistance, benefits and services under New York's covered programs or services are also entitled to the same due process considerations given to disability claimants under the SSI and Social Security Disability Insurance programs.

The U.S. Supreme Court has concluded that the "statute of limitations" for Social Security disability cases "is contained in a statute that Congress designed to be 'unusually protective' of claimants." Bowen v City of New York, 476 U.S. 467, 480 (1986), citing Heckler v Day, 467 U.S. 104, 106 (1984). See State of N.Y. v Sullivan, 906 F.2d 910, 917 (2d Cir. 1990).

Similarly, the New York Court of Appeals described the protective nature of social services legislation in Matter of Sabot v Lavine, 42 N.Y.2d 1068, 1069 (1977):

"Any statute or regulation, but particularly social legislation, however broad, must be interpreted and enforced in a reasonable and humane manner in accordance with its manifest intent and purpose. Neither the applicable and controlling statute, nor the regulations adopted to implement the statute, in the absence of express language to the contrary, may be given an unreasonable and absurd interpretation (see, e.g., Matter of Dowling, 219 N.Y. 44, 56; Matter of Rouss, 221 N.Y. 81, 91; Williams v Williams, 23 N.Y.2d 592, 599)."

New York courts have also acknowledged the special responsibility, which OTDA, its predecessor, the New York State Department of Social Services (State DSS), and local social services districts share in providing public assistance and care to the mentally ill. In Matter of Diaz v Wing, 302 A.D.2d 201, 202 (1st Dept. 2003), the Appellate Division characterized OTDA as having a "mission to assist genuinely disadvantaged and disabled people."

In Matter of Goldstein v D'Elia, NYLJ, January 18, 1980 (Sup. Ct. Nassau Co. December 19, 1979), the court reversed a Fair Hearing Decision, which refused to review the local agency's determination to deny Medicaid benefits to petitioner because he did not request an appeal within 60 days of the agency's denial. The agency's determination and Fair Hearing Decision were reversed on the ground that defects in the agency's denial notice tolled the statute of limitations. But the Court also took special notice of petitioner's mental illness and his psychiatric hospitalizations, concluding that the petitioner did what was "humanly possible to do, given his state of health at the time."

Upon remand, a new Fair Hearing was held and the agency's denial of Medicaid benefits to this mentally ill man was again affirmed. In the appeal that followed, the Appellate Division unanimously reversed the Fair Hearing Decision and ordered that petitioner be granted Medicaid benefits. See Matter of Gary G. v D'Elia, 88 A.D.2d 975 (2d Dept. 1982). After noting petitioner's incapacity, the Second Department concluded that, "On the whole, the local agency's actions in this case appear to have been unreasonable and inflexible." Gary G., 88 A.D.2d at 977.

In Matter of Segall v D'Elia, 92 A.D.2d 897 (2d Dept. 1983), the Second Department reversed a Fair Hearing Decision which had affirmed the local agency's determination to deny petitioner's PA application. Although petitioner did not meet her burden of establishing her eligibility for assistance, the Court took note of "petitioner's mental illness" and concluded that "it does not appear that she deliberately and purposefully refused to co-operate . . . ." Segall, 92 A.D.2d at 897.

In Matter of Zellweger v New York State Department of Social Services, 74 N.Y.2d 404 (1989), the Court of Appeals held that the appellant had the right to a Fair Hearing despite an untimely request because the local agency's defective notices tolled the 60-day statute of limitations. The Court criticized the fundamental unfairness of State DSS's position. "While holding a 91-year-old Alzheimer's patient and his 86-year-old wife to strict compliance with the statute, the respondents have in this case failed to follow the clear language of their own regulations." Zellweger, 74 N.Y.2d at 407.

The unanimous Court empathized with Mr. Zellweger, "who was completely unable to evaluate the information contained in [the agency's notices]." Id. But inasmuch as the notices were defective, the Court had no need to perform the kind of due process/equitable tolling analysis found in Byam, Stieberger and Canales.

Fair Hearing Decision Digest on Tolling the Time Limit Due to Mental or Physical Impairments

Fair Hearing Decisions have applied these case law principles to appellants, who were unable to appeal adverse determinations within the relevant time limits because of their mental or physical impairments. Some decisions rule specifically that the statute of limitations for requesting a Fair Hearing has been tolled due to the appellants' impairments. Others simply find that appellants had "good cause" for missing the deadline for appeal because of their illnesses.

For similar Fair Hearing Decisions issued since November 2010, search the Fair Hearing Decision Archive of the Office of Administrative Hearings (OAH). For search tips, read the article: Effectively Searching OAH's Fair Hearing Decision Archive.

You can also search for selected decisions in the Online Resource Center's (ORC's) Fair Hearing Bank, which requires registration. After you are registered, log in to the ORC's Fair Hearing Bank.

Advocacy Tips:

• If you have been unsuccessful in obtaining existing medical evidence or other mental health reports to support a tolling claim based on a physical or mental impairment, the appellant should complete an Authorization for Release of Health Information and ask the ALJ to subpoena the records. Read the article: Subpoena Issuance by ALJs.
• If no medical evidence or other mental health report is available to support a tolling claim based on a physical or mental impairment, ask the ALJ to order an Independent Medical Assessment/Professional Evaluation of the appellant.

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