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. The 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 tohave 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.
(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 no 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 1300 0f 12 NYCRR.
(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 12 NYCRR section 1300.2(d) 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 non-compliance regardless of the outcome
of the fair hearing.
(ii) If the 10th day
after the 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.
(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 this paragraph.
(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) of this Title and 1300.12 and
1300.13 of 12 NYCRR.
(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.