N.Y. Comp. Codes R. & Regs. Tit. 18 §§ 358-3.6

Current through Register Vol. 46, No. 51, December 18, 2024

Section 358-3.6 - Right to aid continuing

In certain situations, you have the right to have your public assistance, medical assistance, food stamp benefits, and services continued unchanged until your fair hearing decision is issued. OAH will determine whether you are entitled to aid continuing and advise the appropriate social services agency and you of its decision.

(a)Public assistance, medical assistance and services.

For public assistance, medical assistance and services, the right to aid continuing exists as follows:

(1)

(i) Except as provided in paragraph (2) of this subdivision, where the social services agency is required to give you timely notice before it can take any action in your case, you have the right to aid continuing for your public assistance and medical assistance and services until the fair hearing decision is issued if you request a fair hearing before the effective date of a proposed action as contained in the notice of action. In the Medical Assistance Program, if you have been receiving assistance based on a spenddown of excess income, the right to aid continuing includes the right to have your spenddown liability continue unchanged.

(ii) If your assistance or services have been reduced or discontinued, restricted or suspended by the social services agency and you requested a hearing before the effective date contained in the notice, your assistance or services must be restored by the social services agency as soon as possible but no later than five business days after notification from OAH that you were entitled to have your public assistance, medical assistance or services continue uninterrupted pursuant to this paragraph.

(iii) In cases where the action is an automatic public assistance grant adjustment based on a change in State or Federal law, the effective date for determining the right to continued public assistance, medical assistance and food stamps will be deemed to be 10 days after the date the changed grant becomes available to you.

(iv) If the effective date of the proposed action 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 timely for the purposes of aid continuing.

(2) There is no right to aid continuing of:

(i) public assistance where OAH has determined that the sole issue is one of State or Federal law or policy, or change in State or Federal law and not one of incorrect grant computation; or

(ii) medical assistance or services where OAH has determined that the sole issue is one of State or Federal law or policy; or

(iii) medical assistance when you have been determined presumptively eligible for medical assistance and have subsequently been denied eligibility for medical assistance; or

(iv) medical assistance if you are a recipient in a general hospital, not receiving chronic care services, and you are in short-term hospitalization and a utilization review committee determines that such level of care is no longer required; or

(v) public assistance, medical assistance or services when the social services official determines to discontinue your benefits because you are receiving concurrent benefits as described in section 351.9 of this Title in the same social services district or in another social services district within the State; or

(vi) child care assistance provided pursuant to section 415.2(a)(1)(i) of this Title before the eligibility determination and you have subsequently been determined ineligible for child care assistance pursuant to section 415.2(a)(1)(ii) of this Title.

(3)

(i) Where the social services agency is required only to give you adequate notice but not timely notice and has discontinued, reduced, restricted or suspended your public assistance, medical assistance or services, you have the right to have your public assistance, medical assistance or services reinstated and continued until a fair hearing decision is issued only if you request a fair hearing within 10 days of the mailing of the agency's notice of the action and if OAH determines that the action on your public assistance or medical assistance benefits or services did not result from the application of or change in State or Federal law or policy. If OAH determines that you are entitled to have your public assistance, medical assistance or services reinstated and continued in accordance with this paragraph, the social services agency must restore your public assistance, medical assistance or services as soon as possible but not later than five business days after being advised by OAH of such determination. With the exception of child care services, there is no right to reinstatement for supportive services provided to enable you to participate in work activities pursuant to Part 385 of this Title.

(ii) If the 10th day of the mailing of the agency's notice of the action 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 timely for the purposes of reinstatement pursuant to subparagraph (i) of this paragraph.

(4)

(i) Where an applicant for or a recipient of public assistance has claimed to be exempt from work requirements under the disability program pursuant to section section 385.2(d) of this Title and has been determined not to be exempt or to be work limited and a hearing is requested to contest such determination within 10 days of the date of the agency's notice, any failure to comply with employment requirements within the 10-day period or thereafter until a fair hearing decision is issued will not be considered noncompliance regardless of the outcome of the fair hearing.

(ii) If the 10th day after effective date of the agency's notice of the action 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 to be received within 10 days of the effective date of the agency notice for purposes of subparagraph (i) of this paragraph.

(b) Public assistance, medical assistance, and services will not be continued pending the issuance of a fair hearing decision when:

(1) you have voluntarily waived your right to the continuation of such assistance, benefits or services in writing; or

(2) you do not appear at the fair hearing and do not have a good reason for not appearing; or

(3) prior to the issuance of your fair hearing decision, a social services agency proposes to take or takes an action which affects your entitlement to public assistance, medical assistance, or services, and you do not make a request for a fair hearing regarding the subsequent notice.

(c)Food stamp benefits.

For food stamp households, including households in receipt of both food stamps and public assistance, the right to aid continuing exists as follows:

(1)

(i) You have the right to have your food stamp benefits continue at the same level as you have been receiving until the fair hearing decision is issued only where the proposed adverse action is to take place during the certification period of your food stamp authorization and your request for a hearing is made prior to the effective date contained in a timely notice for your case closing or authorization reduction.

(ii) If your food stamp benefits have been reduced or discontinued by the social services agency and you have made a timely hearing request by the effective date contained in the notice, your food stamp benefits must be restored by the social services agency as soon as possible but no later than five business days after notification from OAH that you are entitled to have your benefits continue unchanged pursuant to this paragraph.

(iii) Where the action being taken is the result of a mass change, the effective date of the action is deemed to be 10 days after the date the changed level of benefits become available to you.

(2) There is no right to aid continuing where:

(i) OAH has determined that the sole issue is one of Federal law or regulation and your claim that your benefits were improperly computed or the law or regulation was misapplied or misinterpreted is invalid; or

(ii) your food stamp benefits have been reduced, suspended or cancelled as a result of an order to reduce allotments issued by the Food and Nutrition Service because the requirements of states participating in the Food Stamp Program will exceed appropriations; or

(iii) a social services official determines to discontinue your benefits because you are receiving concurrent benefits as described in section 351.9 of this Title in the same social services district or in another social services district within the State.

(3) When food stamp benefits are reduced or terminated because you fail to make the request for a hearing within the required period stated in the notice, upon your request for a fair hearing your food stamp benefits will be reinstated if you establish that your failure to request a hearing in a timely manner was for good cause. If OAH determines that you have the right to have your food stamp benefits reinstated in accordance with this paragraph, the social services agency must reinstate your food stamp benefits as soon as possible but no later than five business days after being advised by OAH of such determination.

(4) When benefits are reduced or terminated due to a mass change, your benefits will be reinstated only if the issue being contested is that:

(i) food stamp eligibility or benefits were improperly computed; or

(ii) Federal law or regulation is being misapplied or misinterpreted by a State agency or by a social services agency.

If OAH determines that you have the right to have your food stamp benefits reinstated in accordance with this paragraph, the social services agency must reinstate your food stamp benefits as soon as possible but no later than five business days after being advised by OAH of such determination.

(5) If the action proposed in the notice results from a regularly scheduled recertification of your food stamp authorization, your level of participation in the Food Stamp Program will be continued at the level determined at your recertification. You do not have the right to have your level of benefits continued at the prior benefits level unless and until the fair hearing decision is issued requiring such benefit level.

(6) Once your benefits are continued or reinstated, your benefits should continue without change until you receive your hearing decision unless:

(i) your certification period expires, in which case you may reapply and may be determined eligible for a new certification period; or

(ii) a change affecting your household's eligibility for food stamps or the basis of issuance of food stamp benefits occurs before your hearing decision is issued and you fail to make a request for a fair hearing regarding a subsequent notice of adverse action; or

(iii) before the hearing decision is issued a mass change occurs which affects your household's eligibility for food stamps or basis of issuance.

(d) If your public assistance grant, child care services, or food stamp benefits are continued until a fair hearing decision is issued and you lose the fair hearing, the social services agency may recover the benefits or services which you should not have received. This subdivision does not apply to fair hearings to review the imposition of a work sanction under sections 351.2(i)(2), 385.12 and 385.13 of this Title.

(e) If you are involuntarily discharged from a tier II facility after requesting and participating in a hearing, held by the facility or the social services district in which the facility is located, and you request a fair hearing to review this determination, you do not have the right to remain at the facility pending the outcome of your fair hearing.

N.Y. Comp. Codes R. & Regs. Tit. 18 §§ 358-3.6

Amended New York State Register June 3, 2020/Volume XLII, Issue 22, eff. 6/3/2020