section-9 RECIPIENT/APPLICANT RIGHTS

A. Right to Privacy 1. Use and Safeguarding of Protected Information Federal and state program-specific confidentiality and information security rules prohibit unauthorized access and inappropriate dissemination of Protected Information. They also limit the access to and/or dissemination of such information for authorized, legitimate business purposes. Protected Information is data or information created, maintained in and/or obtained from OTDA and/or district applications, systems, networks and/or databases, which is, pursuant to federal and/or state laws, rules, regulations, policies or agreements, deemed confidential, personal, private and/or sensitive. Such data or information may be present or stored in any form or medium and includes, but is not limited to: • Data or information obtained from sources outside of OTDA, such as Federal Tax Information (FTI); Federal Parent Locator Services (FPLS) information; Unemployment Insurance Benefit (UIB) information; Social Security Administration (SSA) information; and, Medicaid (MA) information. • Data or information maintained in and/or obtained from OTDA and/or district applications, systems, networks and/or databases. • Data or information identifying an individual, particularly where such disclosure could result in an unwarranted invasion of personal privacy. Such data or information may include, but is not limited to: home addresses; telephone numbers; Social Security numbers; client identification numbers; payroll information; financial information; health information; and/or, eligibility and benefit information. • Computer codes or other electronic or non-electronic data or information, the disclosure of which could jeopardize the compliance stature, security or confidentiality of OTDA’s or the district’s information technology solutions, applications, systems, networks or data. • Non-final OTDA and/or district policy or deliberative data or information related to the official business of OTDA and/or the district. • Data or information which is not otherwise required to be disclosed under the NYS Freedom of Information Law. • Any other material designated by OTDA and/or the district as being “Confidential,” “Personal,” “Private” or otherwise “Sensitive.” Access to and use of Protected Information is strictly limited to duly authorized employees for authorized purposes only. Authorized entities, including district employees, must maintain the confidentiality and security of Protected Information in accordance with federal and state laws, rules, regulations, policies and agreements. Use and disclosure of such information is strictly limited for authorized purposes, such as uses directly related to the administration and delivery of program services. district employees must be aware at all times of their ongoing duty to comply with this limitation. 2. Interview The applicant's right to privacy must be protected during the interview. The size and layout of facilities must be adequate to preserve the privacy and confidentiality of the interview. At a minimum, the interview must be conducted as a private conversation between the applicant or their authorized representative and the eligibility worker. Reference: 18-LCM-10-T Use and Safeguarding of Protected Information 7 CFR 272.1(c), 18 NYCRR 387.2(j), 18 NYCRR 387.7(h), 18 NYCRR 357 B. Right to Access Case Record 1. Portion of Case Record Available for Review Applicants, recipients, and their authorized representatives have the right to access their “case file” or “case record” upon reasonable notice to the district. For access purposes, with limited exceptions, this includes all paper records and machine- readable data that can readily be converted to a comprehensible paper record relating to an individual’s receipt of SNAP. In the case of records that relate generally to a household, eligibility and payment records must be made available to any member authorized to act on behalf of that household. Any records maintained by the district with respect to an individual are subject to access by that individual whether or not the records are required to be maintained. Medical records contained in the individual’s case record, even if marked "confidential,” must be made available for review. The only exceptions to access to an individual’s case record are: • Those materials to which access is governed by separate statute, such as child welfare, foster care, adoption, child abuse or neglect, or any records maintained for the purpose of the Child Care Review Service. • Those materials maintained separately from public assistance files for the purposes of a criminal prosecution and referral to the District Attorney's office. • The County Attorney or Welfare Attorney's files 2. Procedures for Access to Case Records in Connection with Household, Eligibility and Payment Information If the district receives a request for review of a particular file, only that file should be produced. If, however, a general request for review is made with no specificity, every file pertaining to the requesting individual should be identified and gathered for that individual's review. An appointment schedule may be set up for the purpose of case file review. If there are difficulties in locating the file, the applicant/recipient or their representative must be called. NOTE: No more than five working days should elapse between the date of receipt of request for review and notification that either the file is not yet located, or the file is available at a specific date, time and place for review. At the time of review, proper identification from a person requesting the file must be obtained. If an applicant or recipient requests access to his or her case record, he or she must present some form of identification. If an attorney, paralegal or authorized representative requests access to their client’s case record, he or she must present sufficient documentation to establish his or her authority to act on behalf of the applicant or recipient. The option of allowing the applicant/recipient to make copies of documents from the file rests with the district. It is suggested that copying be allowed if the request is reasonable and copying facilities are available. The district may charge a fee up to $.25 per page for copying, unless the documents are requested in association with preparation for a fair hearing (see Subsection K of this Section) Reference: 15-LCM-01 Records Access 18 NYCRR § 357.3 7 CFR § 272.1(c)(3) C. Application Rights SNAP Application Rights are described in detail in Section 4 of the SNAP Sourcebook. D. Right to Equal Access All persons inquiring about, applying for, or receiving SNAP benefits must be provided with meaningful access to benefits and program services while being treated with understanding, dignity, and respect. Any provision of program information or determination about an applicant or recipient’s participation in SNAP, whether concerning their eligibility or the extent of their participation, shall be made without discrimination on the basis of race, color, national origin, sex, religious creed, disability, age, political beliefs, gender identity, transgender status, gender dysphoria, sexual orientation, marital status, familial status, and military status, or reprisal or retaliation for prior civil rights activity in any program or activity conducted or funded by USDA. 1. Language Access a. Definitions Limited English Proficiency (LEP): LEP individuals are individuals who do not speak English as their primary language and who have a limited ability to read, write, speak, or understand English. b. Policy 1. Interpretive Services LEP applicants must be able to apply without undue hardship. LEP applicants and recipients are entitled to qualified interpretive services, provided at no cost to them. At no time should any person be denied access to an application for benefits, programs or services based on a district’s inability to provide adequate interpretive services. While a district must provide access to qualified interpretive services, an LEP applicant/recipient may waive their right to this service if they so choose. In such cases, a waiver should be obtained from the LEP individual or their authorized representative and maintained in the case record. An example of such a waiver form can be found on the OTDA intranet: A Waiver of Right to Free Oral Interpretation Services 2. Program Information and Vital Documents LEP individuals have the right to access vital SNAP documents in a way that they can understand. On an ongoing basis, OTDA translates forms and publications into a number of languages. These materials are available on the OTDA internet site here: Applications and Publications. district staff may also access translated forms on the OTDA intranet site here: http://otda.state.nyenet/ldss_eforms/ Note: As described in 19-ADM-12, district websites are a commonly used, public source of information, and must also comply with LEP meaningful access requirements by providing LEP individuals access to all SNAP information posted. 2. Disability Access a. Policy An individual with a disability must have the same access to SNAP, as someone who does not have a disability. Individuals who are otherwise eligible for SNAP must not be denied access to benefits and services because of a demonstrable physical and/or mental limitation that would prevent them from meeting a non- essential procedure or rule. b. Reasonable Accommodation Persons with a disability have the right to reasonable accommodation. district staff must make reasonable accommodation to the known physical or mental limitations of otherwise qualified applicants/recipients with disabilities unless the district can show that the accommodation would impose an undue financial and administrative burden on the operation of its program. Districts may request that an applicant/recipient provide appropriate documentation where the disability is not readily apparent. Districts may deny reasonable accommodation, when the applicant/recipient, after being given reasonable opportunity, fails or refuses to comply with the request to provide appropriate documentation where the disability is not readily apparent. Programs and services should be provided to all applicants/recipients in the same manner or location, unless separate or different measures are necessary to ensure equal opportunities for individuals with disabilities. c. Reasonable Modification If a person with a disability would otherwise be denied for failing to meet the requirement of a district policy, practice or procedure due to the limitations of their disability, they have the right to a modification. Note: A district need only make reasonable modifications in its policies, practices, or procedures, to assure that otherwise eligible persons are not denied needed benefits, programs, and services. If the district can demonstrate that a modification would fundamentally alter the nature of its benefits, programs, and services, it is not required to make the modification. For example, a district issues SNAP stamp benefits using the Electronic Benefit Transfer system and has no authority to issue the benefits as cash, the district is not required to alter its SNAP program to provide SNAP benefits in cash to accommodate a request made by a recipient with a mental impairment who is afraid to access benefits electronically. A reasonable modification to accommodate the recipient’s disability may be made by using an alternative payee arrangement. d. Physical Access Persons with disabilities must have access to district offices. If there are barriers in the district’s buildings that would hinder access, alternative means of access must be available, whether these are alternate entrances and offices or alternate places for conducting interviews. An district may, however, pursue alternatives to structural changes in order to achieve program accessibility. For example, where the second- floor office of a district is entered only by climbing a flight of stairs, a person with a mobility impairment or phobia who is seeking information about, or seeking to apply for benefits, programs and services can be served in an accessible ground floor location or in another accessible building. e. Accessible Communication and Program Materials Persons with disabilities have the right to effective communications with district staff, and the right to access SNAP vital documents and program materials in a format that is accessible to them or otherwise be provided with the necessary assistance to access these materials. The district must honor requests for alternative formats without requiring medical documentation to support the request, and staff must not deny a request for alternative formats based on judgment that the individual does not require an alternative format. For more information about Accessible Communications and Alternative Format Program Materials please review 06-ADM-05 and 16-ADM-08. References: Policy Directives: 06-ADM-05: https://otda.ny.gov/policy/directives/2006/ADM/06-ADM-05.pdf 16-ADM-08: https://otda.ny.gov/policy/directives/2016/ADM/16-ADM-08.pdf 17-INF-14 Language Access for Individuals with Limited English Proficiency (LEP) 19-ADM-12 United States Department of Agriculture (USDA) SNAP Civil Rights Requirements Regulation: 18 NYCRR 387.2, 18 NYCRR 355.1(a)(6), 7 CFR 272.4(b) E. Civil Rights New York State Human Rights law guarantees for the protection of the public welfare, health and peace of the people of this State, and in fulfillment of the provisions of the constitution of this State, concerning civil rights and non-discrimination. For SNAP, the federally-protected classes are: race, color, religious creed, national origin, age, sex, disability, political belief or reprisal or retaliation for prior civil rights activity in any program or activity conducted or funded by USDA. In addition to the federally protected categories described above, with respect to public accommodations, NYS law affords class protection based on gender identity, transgender status, gender dysphoria, sexual orientation, marital status, and military status. Non-Discrimination Statement In accordance with Federal civil rights law and U.S. Department of Agriculture (USDA) civil rights regulations and policies, the USDA, its Agencies, offices, and employees, and institutions participating in or administering USDA programs are prohibited from discriminating based on race, color, national origin, sex, religious creed, disability, age, political beliefs, or reprisal or retaliation for prior civil rights activity in any program or activity conducted or funded by USDA. Persons with disabilities who require alternative means of communication for program information (e.g. Braille, large print, audiotape, American Sign Language, etc.), should contact the Agency (State or local) where they applied for benefits. Individuals who are deaf, hard of hearing or have speech disabilities may contact USDA through the Federal Relay Service at (800) 877-8339. Additionally, program information may be made available in languages other than English. To file a program complaint of discrimination, complete the USDA Program Discrimination Complaint Form, (AD-3027) found online at: https://www.usda.gov/oascr/how-to-file-a-program-discrimination-complaint, and at any USDA office, or write a letter addressed to USDA and provide in the letter all of the information requested in the form. To request a copy of the complaint form, call (866) 632-9992. Submit your completed form or letter to USDA by: 1. mail: U.S. Department of Agriculture Office of the Assistant Secretary for Civil Rights 1400 Independence Avenue, SW Washington, D.C. 20250-9410; 2. fax: (202) 690-7442; or 3. email: program.intake@usda.gov. With respect to public accommodations, New York State additionally prohibits discrimination based on gender identity, transgender status, gender dysphoria, sexual orientation, marital status, and military status. Note: The above copied Non-Discrimination Statement is provided by USDA with the inclusion of additional New York State protected classes by OTDA. The statement is required to be included in vital SNAP documents and program information. OTDA’s public-facing website contains the required NDS at: http://otda.ny.gov/programs/snap/. This statement must not be altered. As a commonly used public source of information, district websites also must comply with civil rights non-discrimination requirements also must have the current NDS on their website where SNAP information is hosted. 19-ADM-12 United States Department of Agriculture (USDA) SNAP Civil Rights Requirements 20-ADM-01 Gender Designation “X” 20-LCM-14 Revisions to the district-2921, district-3174, PUB-1301, and PUB- 1313 7 CFR 272.6, 18 NYCRR 387.2 F. Complaint Procedures 1. Civil Rights Complaints Districts shall not discriminate against any applicant or recipient in any aspect of program administration including, but not limited to, program access and delivery of services based on race, color, national origin, age, disability, sex, religious belief, political belief, reprisal/retaliation, and where applicable, sexual orientation, gender identity, marital status and military status. a. Complainant Responsibilities - Persons who believe they have been subject to discrimination as specified above may file their complaint within 180 days of the alleged discrimination by completing the USDA Program Discrimination Complaint Form, AD-3027, found online at http://www.ascr.usda.gov/complaint_filing_cust.html or at any USDA office or write a letter addressed to USDA and provide in the letter all of the information requested in the form. A copy of the complaint form may be obtained by calling (866) 632-9992. The completed complain form or letter to USDA may be sent to: U.S. Department of Agriculture Office of the Assistant Secretary for Civil Rights 1400 Independence Avenue, SW Washington, D. C. 20250-9410; Fax: (202) 690-7442; or Email: program.intake@usda.gov And/or the: State of New York Office of Temporary and Disability Assistance (OTDA) SNAP Civil Rights Team (SCRT) Division of Legal Affairs 40 North Pearl Street – 16C Albany, New York 12243 Email: otda.sm.scrt@otda.ny.gov b. District Responsibility (1) Accepting Verbal Complaints - If an individual alleges discrimination but declines to write a complaint, the employee receiving the complaint must record it. If possible, the following information should be obtained: (a) The complainant's name, address and phone number (or other means of contacting); (b) The name and location of the organization or office accused of discriminatory practices; (c) The circumstances which prompted the allegation; (d) The nature of the alleged discrimination, i.e. race, sex, age, color, religious creed, national origin, political belie, or handicap; (e) Names, titles (if appropriate), and address of individuals (witnesses) who may know of the discriminatory act; (f) The date(s) on which the alleged discrimination occurred; (g) In addition to logging in the actual complaint, districts are required to maintain copies of all pertinent records of the incident and the resolution of the complaint. These records are subject to both State and Federal audit and, therefore, must be readily retrievable for a period of seven [7] years or until the audit is concluded. NOTE: FNS will accept all written complaints even if the above information is not complete. However, investigations will be conducted only if the written complaint contains the data listed in items (b), (c) and (d) above. (2) Review of Complaint - In order to meet the documentation requirements, a district will now maintain a copy of the complaint form that has been referred to the department along with any other materials related to the resolution of the complaint. Pursuant to Federal and State requirements, all complaints alleging civil/human rights discrimination on the basis of membership in a protected class must be processed within 90 days of receipt. All complaints alleging discrimination based on age must be referred for mediation within 5 days of receipt. A complaint is fully processed when an investigation has been initiated and completed, the report has been approved by the United States Department of Agriculture’s Food and Nutrition Service (FNS), and a final determination has been sent to the complainant. (a) Each district should designate a local contact responsible for the investigation of civil/human rights complaints regarding applicants and recipients of SNAP. The Civil/Human Rights Compliance Designee is responsible for conducting the investigation into each complaint allegation and submitting a report of the local finding to OTDA’s SNAP Civil Rights Team (SCRT). To avoid creating a conflict of interest, the Designee should be someone who does not work in the program area. OTDA recommends as an ideal Designee a district affirmative action, equal employment officer, or a member of the district counsel’s office or the Commissioner’s office staff. Please contact OTDA SCRT if you have questions about who to designate. We also request that district’s list an alternate Designee who can assume the duties when/if the regular Designee is unavailable or when complaint volume is high. (b) The OTDA SNAP Civil/Human Rights Violation Complain Form (district-5065) requires a preliminary review or investigation to determine merit and should be forwarded to the department when this preliminary review or investigation is completed by the designee. After conducting a preliminary analysis, OTDA SCRT will indicate whether the complaint is accepted for investigation. If accepted, the complaint allegation will be forwarded to the Designee for local investigation. The district must complete the investigation within 30 working days of receiving the complaint or referral. (c) Those cases deemed to indicate a need for full investigation must be reported to the OTDA SCRT when the investigation is complete. SCRT will send a formal notice to the contact person, receive all reports of local determinations and full investigations and close the inquiry when the issue is resolved. In addition to conducting an investigation, the district is required to maintain copies of all pertinent records of the alleged incident and the resolution of the complaint. These records are subject to both State and Federal audit and, therefore, must be readily retrievable for a period of seven years. (3) Publicity – district must publicize the complaint procedures described in this section. The following non-discrimination posters must be displayed in all local SNAP offices: (a) AND JUSTICE FOR ALL (USDA) Form AD- 475B, September 2019 (b) SNAP COMPLAINT PROCEDURES, district- 8036, January 2020 English/Spanish. (4) Information about non-discrimination laws, complaints, and participant rights must be provided to households within ten days of request. Client informational books district-4148A and district-4148B fulfill these requirements. (5) Obtain Racial/Ethnic Data on Complainants - district must obtain data on households by racial/ethnic category, and report it to the department annually on Form FNS- 101. Applicants should be requested to voluntarily identify their race or ethnicity on the application form. The department must report this racial/ethnic data on participating households to FNS. The ethnic categories are (choose one): (a) Hispanic or Latino (b) Not Hispanic or Latino The race categories are (one or more of the following): (a) Native American or Alaskan Native (b) Black or African American (c) Asian (d) Native Hawaiian or Pacific Islander (e) White 2. Non-Civil Complaints a. Criteria - A non-civil complaint is any written or oral communication made to an district or to the department by or on behalf of an applicant for or recipient of SNAP benefits (other than a complaint for which there is a right to a fair hearing) alleging dissatisfaction with: (1) The action or failure to act in a particular case; (2) The manner in which the district generally handles its cases; (3) The district’s facilities and/or services, or the manner in which it generally conducts business; (4) Other facilities or services used by the district for providing care and services for its clients; or (5) Any other aspect of district administration not mentioned above. b. Complainant Responsibilities - Persons who believe any of the above, including processing standards and/or delivery of services, were provided unsatisfactorily and have not obtained a satisfactory resolution from the local SNAP Office may also file a complaint with the department SNAP Bureau. Complaints received by a district or the department should include: (1) Complainant's name; (2) Complainant's address; (3) Phone number (or other means of contacting complainant); (4) The county involved; (5) Complainants case number if applicable; (6) All pertinent information concerning the allegation. c. district Responsibilities (1) Every complaint received must be promptly acknowledged. (2) The basis of the complaint must be reviewed and investigated to determine the validity of the complaint. (3) The district is responsible for reviewing its own activity in order to determine what appropriate action is required. (4) When a complaint has been referred to the district by the Department, a response must be submitted to the Department within 20 days covering all matters pertaining to the complaint, including: • Facts gathered by the district concerning the complaint; and • Any action taken by the district to resolve the issue and whether the complainant is satisfied with the explanation/action provided. 3. General Information The Department will follow up on all SNAP complaints it receives. Corrective action will be taken where warranted in addition to responding to the complainant on the State agency's disposition of the complaint. To help accommodate civil complaint reporting requirements, districts are encouraged to develop and maintain a "complaint tracking system" that would identify: • Complainant's case number, name, address, and phone number; • Date received; • Type of complaint (i.e. civil, non-civil); • Reason for complaint; • Who/where the complaint was referred for action (office/unit/worker); • Resolution due date; • Date resolved. Policy Reference: 20-LCM-03 Supplemental Nutrition Assistance Program (SNAP) Revised Civil/Human Rights Complaint Procedures 15-LCM-09 Supplemental Nutrition Assistance Program (SNAP) Revised Civil/Human Rights Complaint Procedures 13-LCM-06 Supplemental Nutrition Assistance Program (SNAP) Civil/Human Rights Complaint Procedures 03 LCM-03, Food Stamp Program Civil Rights Complaint Procedures 90 INF-53 Food Stamps: Complaint Procedures/Requirements 90 ADM-41 New Client Informational Books: DSS-4148A - "What You Should Know About Your Rights and Responsibilities (When Applying for or Receiving Social Services)" and DSS-4148B - "What You Should Know About Social Services Programs" 09 INF-06 Revisions to the district-4148B - What You Should Know About Social Services Programs – Book 2 07 INF-06 Revisions to the district-4148A - What You Should Know About Your Rights and Responsibilities (When Applying For or Receiving Social Services) TA Source Book: Chapter 4 G. Right to Fair Hearing 1. DEFINITIONS a. Aid Continuing - The right to have SNAP benefits continue unchanged until the fair hearing decision is issued. b. Appellant - The party for whom the fair hearing is requested. c. Applicant - A person who has applied for SNAP benefits. d. Commissioner - The New York State Commissioner of the Office of Temporary & Disability Assistance or the Commissioner's designee. e. Department –The New York State Office of Temporary & Disability Assistance. f. Fair Hearing - A formal procedure provided by the Department upon a request made for an applicant or recipient to determine whether an action taken or failure to act by a local district was correct. g. Hearing Officer - An attorney who is employed by the Department and designated and authorized by the Commissioner to preside at hearings. The Hearing Officer is also referred to as the Administrative Law Judge, or ALJ. h. Local District - Local district means the county Department of Social Services (district) or the New York City Human Resources Administration (HRA). i. Mass Change In the SNAP Program - Changes initiated by the Federal government or the Department which affect all SNAP households or a significant portion of all SNAP households. Mass changes may include, but are not limited to, adjustments to income eligibility standards, shelter and dependent care deductions; the thrifty food plan and the standard deduction; annual and seasonal adjustments to social security, Supplemental Security Income and other Federal benefits. j. Parties to A Fair Hearing - The person for whom a fair hearing is requested and the district or agencies whose decision, action or failure to act is subject to review at the fair hearing. k. Recipient - A person who is, or has been, receiving SNAP benefits. Recipient includes a former recipient seeking to review a determination of an district and who would have a right to a hearing under SNAPSB Section 8 if such person were a current recipient. l. Social Services District - The local/county Department of Social Services (district) or the New York City Human Resources Administration (HRA) m. Witness - A person, other than the applicant, recipient, or the representative thereof, who presents testimony and/or documentary evidence at a fair hearing. References: 18 NYCRR 358-2 Definitions 2. General Policy a. Reasonable Promptness An applicant or recipient has the right to challenge certain determinations or actions of a local district or a local district's failure to act with reasonable promptness or within the time periods required by 18 NYCRR 387, by requesting that the Department provide a fair hearing. The right to request a fair hearing cannot be limited or interfered with in any way. b. Fair Hearing Issues An applicant or a recipient of SNAP benefits has a right to a fair hearing if: 1. An application has been denied by the local district or the applicant has agreed in writing that the application should be withdrawn but the applicant feels that they were given incorrect or incomplete information about their eligibility, or 2. A local district has failed to: a. Determine eligibility for SNAP with reasonable promptness or within the time periods required by 18 NYCRR 387; or b. Issue or adjust SNAP benefits; or 3. SNAP benefits have been discontinued, reduced, or increased; or 4. Although there has been no change in the amount of SNAP benefits, the applicant/recipient wishes to challenge the local district’s determination that the amount of one of the items used in the calculation of SNAP benefits has changed; or 5. A request for restoration of any SNAP benefits lost less than one year prior to the request for restoration has been denied; or the applicant/recipient does not agree with the amount of SNAP benefits restored or any other action taken by the local district to restore such benefits; or 6. SNAP benefits have been reduced, suspended or cancelled as a result of an order issued by the United States Food and Nutrition Service (FNS) to reduce allotments because the requirements of states participating in SNAP will exceed appropriations. However, in such cases the applicant/recipient has a right to a fair hearing only if he/she believes that the benefit level was computed incorrectly under federal rules, or that federal rules were misapplied or misinterpreted; or 7. The recipient is aggrieved by a mass change in the SNAP Program; or 8. Within a certification period, the amount of the SNAP benefits is inadequate and the recipient has made the request for a fair hearing within such certification period; or 9. An application for SNAP benefits has been denied or SNAP benefits have been reduced or discontinued due to a determination that the applicant/recipient is not exempt from SNAP work requirements or that the applicant/recipient has failed to comply with work registration or employment and training requirements. An Applicant/recipient may request a fair hearing to review such determination including the determination of exemption status, the type of requirement imposed, or a district’s refusal to make a finding of good cause for failure to comply with such requirements if the applicant/recipient believes that the finding of failure to comply was improper; or 10. The applicant/recipient disagrees with the amount of a claim for the over- issuance of SNAP benefits, except if the amount of such claim has already been decided by a hearing in accordance with SNAPSB Section 6. c. Sponsor of Alien The sponsor of a noncitizen receiving SNAP benefits and for whom there has been an overissuance of benefits for which the sponsor is liable, has a right to a hearing to contest the following: 1. The determination that the sponsor was responsible for the incorrect information which was provided, and which resulted in the over-issuance; and 2. The amount of the over-issuance for which the sponsor is liable. d. Issues Without Fair Hearing Rights With respect to SNAP benefits, an Applicant/Recipient does not have the right to a fair hearing to challenge the following: 1. An adverse decision in an administrative disqualification hearing; or 2. A disqualification penalty imposed after the applicant/recipient waived their rights to an administrative disqualification hearing. Further, an applicant/recipient has no right to a hearing in the following situations: 1. If a request for contact notice has been sent in order to verify or clarify information during the SNAP certification period; or 2. If a notice of missed interview informing has been sent to advise that a scheduled eligibility or recertification interview has been missed and that it is the applicant/recipient’s responsibility to reschedule the interview. References: 358-3.1 Right to a Fair Hearing H. Request for a Fair Hearing 1. Requests for A Fair Hearing A fair hearing may be requested in writing, (via post mail, e-mail or fax), or by telephone, or in person. a. 90 Day Limit - A request for a fair hearing on any action by the district affecting SNAP benefits, including a loss of SNAP benefits, must be made within 90 days after the determination, action or failure to act about which the applicant/recipient is complaining. Action includes a denial of a request for restoration of any benefits lost more than 90 days but less than one year prior to the request for restoration. Where the local district’s action is the result of a mass change, a request for a fair hearing must be made within 90 days after the changed level of benefits become available to the recipients. b. A request for a fair hearing to dispute the current level of SNAP benefits granted to a recipient household must be made during the SNAP certification period. c. Holiday or Weekend Extension - If the last day for requesting a fair hearing falls on a weekend or holiday, a hearing request postmarked or received by the Department on the day after the weekend or holiday will be considered a timely request. 2. Scheduling and Prioritizing Hearings Convenient Time and Location - The fair hearing will be held at a time and place convenient to the appellant as far as practicable. In scheduling the hearing, the Department will consider such things as the physical inability of the appellant to travel to the regular hearing location. Priority in the scheduling of a hearing and determination will be provided when: a. A fair hearing which is subject to priority processing pursuant to this section of the SNAPSB must be scheduled as soon practicable after the request is made. In determining the date for which the hearing will be scheduled, consideration must be given to the nature and urgency of the appellant's situation, including any date before which the decision must be issued to allow for meaningful resolution of the issue under review; or b. An applicant has a problem which is determined, at the Department’s discretion, to be an appropriate subject for priority processing and which presents a crisis situation or a threat to the health and safety of the family, or c. An applicant/recipient requests a fair hearing concerning their SNAP benefits and the household intends to move from the district before the hearing decision would normally be issued. Priority will be given to the scheduling of the hearing, taking into account any date before which the hearing must be scheduled to allow for the appellant to receive the decision while still in the district. Example: Hearing requests from households such as migrant farmworkers that plan to move from the jurisdiction, should be expedited in order for the hearing decision to be issued and a restoration of benefits if the decision so indicates, before they leave the area. 3. Priority Determination After a hearing which was scheduled on a priority basis, the decision must be issued as soon as practicable. In determining the date by which the decision will be issued, consideration must be given to the nature and urgency of the appellant's situation, including any date before which the decision must be issued to allow for meaningful resolution of the issue under review. 4. Ending Priority Processing If, at the conclusion of a hearing which was scheduled on a priority basis, the Hearing Officer determines that the issues do not warrant continued priority processing, the Hearing Officer will inform the parties that the issuance of the decision will not receive priority processing. References: 7 CFR 273.15; Fair Hearings 358-3.2 Right to Priority in Hearing and Determination 358-3.5 Requests for a Fair Hearing I. Appellant Rights Appellants have the right to: a. The continuation or reinstatement of SNAP benefits until the issuance of a decision in their fair hearing, as described by subsection J – ‘Aid Continuing’ of this section. Recipients have the right to request that their benefits not be continued or reinstated until the fair hearing decision is issued. b. Examine the case record and to receive copies of documents in the case record which are needed to prepare for the fair hearing. c. Examine and receive copies of all documents and records which will be submitted into evidence at the fair hearing by the district. d. Request a rescheduling of the hearing. e. Be represented by an attorney or other representative at any conference and hearing, or to represent themselves. f. Have an interpreter at any fair hearing, at no charge, if the appellant does not speak English or if they are hearing impaired. Appellants should advise the Office of Administrative Hearings (OAH) prior to the date of the fair hearing if they will need an interpreter. g. Appear and participate at the conference and fair hearing, to explain their situation, to offer documents, to ask questions of witnesses, to offer evidence in opposition to the evidence presented by the local district and to examine any documents offered by the local district; h. Bring witnesses to present written and oral evidence at any conference or fair hearing; i. Make a request to the local district to receive necessary transportation or transportation expenses to and from the fair hearing for the appellant and their representatives and witnesses and to receive payment for the appellant’s necessary child care costs and for any other necessary costs and expenditures related to their fair hearing; j. Have the fair hearing held at a time and place convenient to the appellant as far as practicable, taking into account circumstances such as their physical inability to travel to the regular hearing location; and k. Seek review by a court if the decision is not in the appellant's favor. l. Request the removal of the hearing officer. References: 358-3.4 Rights in the Fair Hearing Process, 7 CFR 273.15; Fair Hearings 16-ADM-08 Alternative Formats and Disability Accommodation Indicator Use 15-LCM-01Records Access J. Aid Continuing 1. Right to Aid Continuing For SNAP households, including households in receipt of both SNAP and TA, the right to aid continuing exists as follows: a. Recipients have the right to have their SNAP benefits continue at the same level as they 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 their SNAP authorization and their request for a hearing is made prior to the effective date contained in a timely notice for their case closing or authorization reduction. The effective date of a SNAP timely notice of adverse action must be at least 10 days after the date the notice is mailed. b. If a recipient's SNAP benefits have been reduced or discontinued by the district and they have made a timely hearing request by the effective date contained in the notice, their SNAP benefits must be restored by the district as soon as possible but no later than five business days after notification from the Department that they are entitled to have their benefits continue unchanged. c. When 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 the recipient. d. If the effective date of the proposed action falls on a weekend or holiday, a hearing request postmarked or received by the Department on the day after the weekend or holiday will be considered timely. 2. No Right to Aid Continuing There is no right to aid continuing where: a. The Department has determined that the sole issue is one of federal law or regulation and the recipient claims that their benefits were improperly computed or the law or regulation was misapplied or misinterpreted as invalid; or b. The recipient's SNAP benefits have been reduced, suspended or cancelled as a result of an order to reduce allotments issued by the Food and Nutrition Service (FNS) because the requirements of states participating in the Supplemental Nutritional Assistance Program (SNAP) will exceed appropriations; or c. The local district determines to discontinue benefits because of receipt of concurrent benefits in the same district or another district in the State. 3. Recertification affecting Aid Continuing If the action proposed in the notice results from a regularly scheduled recertification of the recipient's SNAP authorization, their level of participation in SNAP will be continued at the level determined at their recertification. Recipients do not have the right to have their level of benefits continued at the prior benefits level unless and until the fair hearing decision is issued requiring such benefit level. 4. Good Cause for Late Request When SNAP benefits are reduced or terminated because the recipient fails to make the request for a hearing within the required period stated in the notice, upon their request for a fair hearing their SNAP benefits will be reinstated if they establish that their failure to request a hearing in a timely manner was for a good cause. If the Department determines that they have the right to have their Supplemental Nutritional Assistance Program benefits reinstated, the local district must reinstate their SNAP benefits as soon as possible but no later than five business days after being advised by the Department of such determination. 5. Mass Changes When benefits are reduced or terminated due to a mass change, the recipient's benefits will be reinstated only if the issue being contested is that: a. SNAP eligibility or benefits were improperly computed; or b. Federal law or regulation is being misapplied or misinterpreted by the Department or by the district. If the Department determines that the recipient has the right to have SNAP benefits reinstated, the local district must reinstate their SNAP benefits as soon as possible but no later than five business days after being advised by the Department of such determination. 6. No Change of Benefits Prior To Fair Hearing Decision Once benefits are continued or reinstated, the benefits should continue without change until the hearing decision unless: a. The certification period expires, in which case the recipient may reapply and may be determined eligible for a new certification period; or b. A change affecting the household's eligibility for SNAP or the basis of issuance of SNAP benefits occurs before the hearing decision is issued and the recipient fails to make a request for a fair hearing regarding a subsequent notice of adverse action; or c. Before the hearing decision is issued, a mass change has occurred which affects the household's eligibility for SNAP or basis of issuance. 7. Recovery of Aid Continuing If the recipient's SNAP benefits are continued until a fair hearing decision is issued and they lose the fair hearing, the district may recover the benefits which were authorized as a result of aid to continue while the fair hearing and the decision were pending. This does not apply to fair hearings to review the imposition of an employment sanction because the employment sanction is imposed in its entirety after the district is upheld in the fair hearing. References: 358-3.6 Right to Aid Continuing CFR 273.13 Notice of Adverse Action 94 INF-16 Food Stamps Clarification of Effective Date of a Timely Adverse Action Notice; K. Examination of Case Record 1. Right to Examine Case Record At any reasonable time before the date of the fair hearing and also at the fair hearing, the appellant or their authorized representative has the right to examine the contents of their case record and all documents and records to be used by the local district at the fair hearing. 2. Except as provided in paragraph 3 below the only exceptions to access to the case record are: a. Those materials to which access is governed by separate statutes, such as records regarding child welfare, foster care, adoption or child abuse or neglect, or in cases of domestic violence which might cause a threat to the victim, or any records maintained for the purposes of the Child Care Review Service; and b. Those materials being maintained separately from TA files for the purposes of criminal prosecution and referral to the district attorney's office. This exception applies only to records which are part of an active and ongoing investigatory action; and c. The county attorney or county welfare attorney's files. 3. Commission for The Visually Handicapped Records Case records secured by the Commission for the Visually Handicapped or by a local rehabilitation agency acting on behalf of such Commission will not ordinarily be made available for examination since they contain information secured from outside sources. However, particular extracts will be furnished to the applicant/recipient or his/her authorized representative when provision of such information will be beneficial. The case record or any part thereof, admitted as evidence in a fair hearing shall be available for review by the applicant/recipient or his/her authorized representative. 4. Copies of Documents a. Upon oral or written request, including request by telephone, the district must provide to the appellant and/or the appellant's authorized representative copies of all documents to be presented by the district at the fair hearing. Such copies must be provided at a reasonable time before the date of the hearing. If the request for copies of documents is made less than five business days before the hearing, the district must provide the appellant and/or the appellant’s authorized representative such copies no later than at the time of the hearing. Such documents must be provided without charge and must be provided to the appellant and/or the appellant's authorized representative by mail, if so requested. If there is insufficient time for the documents to be mailed and received before the scheduled hearing date, the documents may be presented at the hearing instead of being mailed. b Fraud files maintained separately from the public assistance/SNAP files for possible referral to the DA's office shall not ordinarily be available for inspection. However, if the district intends to use information from the fraud file in the fair hearing context, the entire file shall be available for review. 5. Copies of Additional Documents a. Any additional documents from the appellant’s case file which the appellant and/or the appellant’s authorized representative identifies and requests for purposes of hearing preparation, must be provided at a reasonable time before the date of the hearing, the same as specified in 4.a. of this subsection. 6. Document Accessibility a. If the district fails to comply with these requirements, the hearing officer may adjourn the matter, recess the matter to allow review of the documents, preclude the introduction of the documents, or take other action to ensure that the Appellant is not harmed. b. Confidential information that is protected from release and other documents which the household will not have an opportunity to contest or challenge may not be introduced at the hearing or affect the hearing decision. References: 358-3.7 Examination of Case Record before the Fair Hearing; CFR 273.15 Fair Hearings 16-ADM-08 Alternative Formats and Disability Accommodation Indicator Use 15-LCM-01 Records Access L. Authorization of Representative 1. Written Authorization Except where impracticable to execute a written authorization, an individual or organization seeking to represent the appellant, other than an attorney or an employee of an attorney, must have a written authorization to represent the appellant at any conference or fair hearing and to review the appellant’s case record. An employee of an attorney will be considered authorized to be a representative if such employee presents written authorization from the appellant’s attorney or if such attorney advises the district by telephone of such employee's authorization. 2. Copies of All Correspondence Once an district and the Department have been notified that a person or organization has been authorized to represent the appellant at the fair hearing, such representative will receive copies of all correspondence to the applicant/recipient from the district and the Department relating to the conference and fair hearing. References: 358-3.9 Authorization of Representative 15-LCM-01 Records Access M. Local District Responsibilities 1. Proposed Actions a. A local district proposing to approve, deny, discontinue, or reduce SNAP benefits, or to increase SNAP benefits, or to change the amount of one of the items used in the calculation of SNAP benefits, must review or cause to be reviewed the intended action to determine whether the intended action is correct on the basis of the available evidence included in the appellant’s case record. b. Notice - Where it is determined that the intended action is correct after review, the district must send to the applicant/recipient a notice which meets the requirements of SNAPSB Section 7. 2. Pre-Hearing Responsibilities a. Provide Assistance - When requested, the district must provide assistance to applicants and recipients in making a request for a fair hearing. b. Aid Continuing - (1) Upon notification by the department that a fair hearing has been requested and that the appellant's SNAP benefits must be continued or reinstated in accordance with Subsection J of this Section until the fair hearing decision is issued, the district, except as provided in this section, must take immediate action to assure that the appellant's SNAP benefits continue unchanged until the fair hearing decision is issued. (2) Upon receipt of such notification, if SNAP benefits already have been discontinued, or reduced, the district must take whatever action is necessary to restore the appellant's SNAP benefits to their previous level. Such action must be taken as soon as possible but no later than five business days from notification that the appellant's SNAP benefits must continue or be reinstated. c. Copies of Documents To Be Presented - Upon oral or written request, including request by telephone, the district must provide to the appellant or appellant's representative copies of the documents to be presented at the fair hearing. Such copies must be provided within the time-frames set forth in this section. Such documents must be provided without charge, and must be provided to the appellant or the appellant's representative by mail, if so requested. d. Copies from Case Record - Upon oral or written request, including request by telephone, the district must provide to the appellant or appellant’s authorized representative copies of any documents from appellant's case file which the appellant requests for purposes of hearing preparation. Such copies must be provided within the time-frames set forth in this section. Such documents must be provided without charge, and must be provided to the appellant or the appellant's representative by mail, if so requested. e. Encourage Agency Conferences – The district should encourage the use of agency conferences to households which wish to contest a denial of expedited service, scheduled within 2 days, and make records available. The district may also offer agency conferences to households adversely affected by an agency action, make records available and advise households that use of an agency conference is optional and that it shall in no way delay or replace the fair hearing process. The agency conferences may be attended by the eligibility worker responsible for the agency action, and shall be attended by an eligibility supervisor and/or the agency director, and by the household and/or its representative. An agency conference may lead to an informal resolution of the dispute. However, a fair hearing must still be held unless the household makes a written withdrawal of its request for a hearing. f. Telephone Conferences – The district may provide telephone conferences upon prior approval of the Department’s Office of Administrative Hearings. The Office of Administrative Hearings may approve such requests in its discretion, where holding an in-person conference is not feasible. g. Copies of All Correspondence To Authorized Representative - The district must send copies of all correspondence relating to the conference and fair hearing to the authorized representative of the appellant. 3. Responsibilities and Rights in The Fair Hearing Process a. Provide Documentary Evidence - The district must provide complete copies of its documentary evidence to the hearing officer at the fair hearing and also to the appellant or appellant's authorized representative, where such documents were not provided previously to the appellant or appellant's authorized representative in accordance with this section. Such documents must be provided without charge. b. Attendance and Documentation at the Hearing - Except as provided in this section, a representative of the district must appear at the hearing along with the case record and a written summary of the case. Such representative must: (1) Have reviewed the case; and (2) Be prepared to present evidence in support of the action, including: (a) The case number; (b) The applicable SNAP benefits involved; (c) The names, addresses, relationships and ages of persons affected; (d) The determination regarding which the hearing request was made; (e) A brief description of the facts, evidence and reasons supporting such determination, including identification of the specific provisions of law, the department regulations and approved local policies which support the action; (f) The relevant budget or budgets prepared by the district for the appellant or the household of such appellant including printouts of relevant budgets produced on the Welfare Management System (WMS); and (g) A copy of the applicable action taken notice, adverse action notice, expiration notice or notice of action, including any notices produced on the Client Notices System. (3) Have the authority to make binding decisions at the hearing on behalf of the district, including the authority to withdraw the action or otherwise settle the case. c. Appear on Paper Only - No later than five calendar days before the hearing date, the district may make application to the OTDA’s Office of Administrative Hearings (OAH), to appear at a hearing on paper only. (1) The OAH may approve such application in its discretion where the rights of the appellant can be protected and the personal appearance of the district is neither feasible nor necessary. (2) A Hearing Officer may require the appearance of a representative of the district where such appearance is necessary to protect the due process rights of the appellant. d. Transportation Request - Upon request of the appellant, the district must provide necessary transportation and transportation expenses to and from the fair hearing for the appellant and appellant's representatives and witnesses and payment for appellant's necessary child care costs and for any other necessary costs and expenditures related to the fair hearing. e. Local Department of Social Services Rights – The district has the following hearing rights which appellants have as found in this section: (1) The right to adjournment (rescheduling); (2) The right to be represented by an attorney or other representative; (3) The right to present evidence, question witnesses and examine documents presented by the appellant; (4) The right to bring witnesses to present written and oral evidence; (5) The right to request the removal of a hearing officer. f. Comply with Fair Hearing Decisions. (1) For decisions involving TASNAP cases, definitive and final administrative action must be taken promptly, but in no event more than 90 days from the date of the request for a fair hearing. (2) For all cases involving SNAP issues only the decision must be issued, and the parties notified of the decision within 60 days of receipt of the request for the fair hearing by OAH. If the decision will result in an increase in household food stamp benefits, the district must reflect such increase in the benefit allotment within 10 days of the receipt of the hearing decision; however, the increase may occur later than 10 days after the decision if the district decides to make the decision effective in the household's normal issuance cycle and the issuance will occur within 60 days from the household's request for a hearing. Decisions which result in a decrease in household benefits must be reflected on the next scheduled issuance following receipt of the fair hearing decision. (3) Upon receipt of a complaint that an district has not complied with the fair hearing decision, The Commissioner, through action coordinated by OAH, will secure compliance by whatever means is deemed necessary and appropriate under the circumstances of the case. References: 358-4.1 Proposed Actions 358-4.2 Pre-Hearing Responsibilities 358-4.3 Responsibilities and Rights in the Fair Hearing Process 358-6.4 Compliance 273.15 Fair Hearings 15-LCM-01 Records Access N. Department Responsibilities 1. Notice of Fair Hearing a. Notice - Except for hearings which are given priority in scheduling as described in this section, at least 10 calendar days prior to the date of the fair hearing, a written notice of the fair hearing will be sent by the department to the appellant, appellant's authorized representative and to the district. b. Included in The Notice - The fair hearing notice will state the following: (1) The date, time, and place of the fair hearing and an explanation of how and when a change in the date and place of the fair hearing may be requested, and under what circumstances a hearing will be rescheduled if neither the appellant nor the appellant's representative appears at the hearing; and (2) Whether SNAP benefits must be continued unchanged; and (3) The appellant’s right upon request to necessary transportation or to transportation expenses to and from the fair hearing for the appellant and the appellant's authorized representatives and witnesses and for payment of the appellant's necessary child care costs and for any other necessary costs and expenditures related to the fair hearing; and (4) The appellant's right to be represented at the fair hearing by legal counsel, a relative, friend or other person or to represent oneself, and the right to bring witnesses to the fair hearing and to question witnesses at the hearing; and (5) The right to present written and oral evidence at the hearing; and (6) That the appellant should bring the notice of fair hearing to the hearing as well as all evidence that has a bearing on the case such as books, records and other forms of written evidence, and witnesses, if any; and (7) The appellant's right to review appellant's case record prior to and at the fair hearing; and (8) The appellant's right upon request to obtain copies of documents which the local district will present at the fair hearing and copies of other additional documents for the purpose of preparing for the fair hearing; and (9) The right of a hearing impaired or Limited English Proficiency (LEP) appellant to interpreter services at the fair hearing at no charge; and (10) The issues which are the subject of the hearing. 2. Adjourning the Fair Hearing a. Request to Delay - Upon request of either the appellant or a district, the fair hearing may be rescheduled, upon a showing of good cause for requesting the delay. Provided however, that the appellant may request, and is entitled to receive, an adjournment not exceeding 30 days from the date of the scheduled hearing without showing of good cause. b. Adjourning or Rescheduling the Fair Hearing - When in the judgment of the Department or the Hearing Officer the parties' due process rights would best be served by adjourning the fair hearing, or if there are special circumstances which make proceeding with the case fundamentally unfair, OTDA or the Hearing Officer may reschedule the fair hearing. c. Request to Adjourn - Requests to adjourn a fair hearing must be made in accordance with the instructions in the notice of fair hearing. d. Adjourned Per Appellant's Request - If a fair hearing is adjourned based upon a request by the appellant, the time limit set forth in this section will be extended by the number of days the fair hearing has been postponed. e. Benefits Continued for Rescheduled Hearing - If SNAP benefits are continued in accordance with this section and the fair hearing is rescheduled for the reasons set forth above, an appellant has the right to have SNAP benefits continued until the fair hearing decision is issued. 3. Withdrawal of A Request for A Fair Hearing a. Withdrawal Requirement - the Department will consider a hearing request to be withdrawn under the following circumstances: (1) The Department has received a written statement from the appellant or appellant's authorized representative stating that the request for a fair hearing is withdrawn; or (2) The appellant or appellant's authorized representative has made a statement withdrawing the request to the hearing officer on the record at the hearing. b. Insufficient Request - An oral statement by telephone or in person to an district employee that an appellant is withdrawing a request for a fair hearing is insufficient to withdraw a fair hearing request. 4. Abandonment of A Request for a Fair Hearing a. Request Abandoned - The Department will consider a fair hearing request abandoned if neither the appellant nor appellant's authorized representative appears at the fair hearing unless either the appellant or appellant's authorized representative has: (1) Contacted the Department within 15 days of the scheduled date of the fair hearing to request that the fair hearing be rescheduled; and (2) Provided the Department with a good cause reason for failing to appear at the fair hearing on the scheduled date. b. Case Restored to Calendar - The Department will restore a case to the calendar if the appellant or appellant's authorized representative has met the requirements above. c. If the Appellant abandons a hearing that is subject to aid continuing, the right aid continuing ends upon abandonment. (1) If the fair hearing is restored to the calendar based upon a request to do so made within 60 days from the date of abandonment, aid continuing will be restored retroactively to the date of abandonment. (2) If the fair hearing is restored to the calendar based upon a request to do so made 60 days or more from the date of abandonment, aid continuing will be restored prospectively only from the date of the request to restore the fair hearing to the calendar. c. In no event will an abandoned fair hearing be restored to the calendar if the request to do so is made one year or more from the date of the abandoned hearing. 5. Hearing Officer a. Impartial Hearing Officer - The hearing shall be conducted by an impartial hearing officer employed by the Department, who has not been involved in any way with the action in question. b. Responsibilities of The Hearing Officer - To ensure a complete record at the hearing, the hearing officer must: (1) Preside over the fair hearing and regulate the conduct and course of the fair hearing, including at the hearing officer's discretion, requiring sworn testimony, and administering the necessary oaths; and (2) Make an opening statement explaining the nature of the proceeding, the issues to be heard and the manner in which the fair hearing will be conducted; and (3) Elicit documents and testimony, including questioning the parties and witnesses, if necessary, particularly where the appellant demonstrates difficulty or inability to question a witness; however, the hearing officer will not act as a party's representative; and (4) Where the hearing officer considers independent medical assessment necessary, require that an independent medical assessment be made part of the record when the fair hearing involves medical issues such as a diagnosis, an examining physician's report, or a medical review team's decision; and (5) Adjourn the fair hearing to another time on the hearing officer's own motion or on the request of either party, to the extent allowable in this section; and (6) Adjourn the fair hearing when in the judgment of the hearing officer it would be prejudicial to the due process rights of the parties to go forward with the hearing on the scheduled hearing date; and (7) Review and evaluate the evidence, rule on the admissibility of evidence, determine the credibility of witnesses, make findings of fact relevant to the issues of the hearing which will be binding upon the Commissioner unless such person has read a complete transcript of the hearing or has listened to the electronic recording of the fair hearing; and (8) At the hearing officer's discretion, where necessary to develop a complete evidentiary record, issue subpoenas, and/or require the attendance of witnesses and the production of books and records; and (9) Prepare an official report containing the substance of what transpired at the fair hearing and including a recommended decision to the Commissioner. c. Removal of A Hearing Officer - A party to a hearing may make a request to a hearing officer that the hearing officer remove himself or herself from presiding at the hearing. (1) The grounds for removing a hearing officer are that such hearing officer has: (a) Previously dealt in any way with the substance of the matter which is the subject of the hearing except in the capacity of hearing officer; or (b) Any interest in the matter, financial or otherwise, direct or indirect, which will impair the independent judgment of the hearing officer; or (c) Displayed bias or partiality to any party to the hearing. (2) The hearing officer may independently determine to remove themself from presiding at a hearing on the grounds set forth in paragraph (1) above. (3) The request for removal made by a party must: (a) Be made in good faith; and (b) Be made at the hearing in writing or orally on the record; and (c) Describe in detail the grounds for requesting that the hearing officer be removed. (4) Upon receipt of a request for removal, the hearing officer must determine on the record whether to remove him/herself from the hearing. (5) If the hearing officer determines not to remove him/herself from presiding at the hearing, the hearing officer must advise the party requesting removal that the hearing will continue but the request for removal will automatically be reviewed by the general counsel or the general counsel's designee. (6) The determination of the hearing officer not to remove him/herself will be reviewed by the general counsel or the general counsel's designee. Such review will include review of written documents submitted by the parties and the transcript of the hearing. (7) The general counsel or the general counsel's designee must issue a written determination of whether the hearing officer should be removed from presiding at the hearing within 15 business days of the close of the hearing. (8) The written determination of the general counsel or the general counsel's designee will be made part of the record. 6. Who May Be Present at The Fair Hearing The following persons may be present at a fair hearing: a. The appellant who has requested the fair hearing; and b. The appellant's representative; and c. Counsel or other representatives of the district; and d. Witnesses of either party and any who may be called by the hearing officer; and e. An interpreter; and f. Any other person admitted at the hearing officer's discretion, with the consent of the appellant. 7. Media Admission to Fair Hearing a. Waiver of Appellant's Right to Confidentiality - The media may be admitted to a fair hearing where the appellant has made a specific waiver of appellant's right to confidentiality both in writing and on the record and has clearly and unequivocally confirmed on the record that the appellant desires and consents to the presence of the media. The waiver must be unqualified, complete, and made with full knowledge of the ramifications of the waiver, including that the waiver is irrevocable. b. Extent of Access - Where a waiver has been secured, the extent of any access to be granted to the media is to be determined at the discretion of the hearing officer. In determining the extent of such access, the hearing officer will consider the following: (1) Maintenance of proper hearing decorum; and (2) Potential disruption to the proceedings; and (3) Adverse effect on witnesses; and (4) Impediments to the making of a proper and accurate record; and (5) The physical space and conditions of the hearing room; and (6) Potential disruption to the hearing officer, including impediments to the hearing officer's ability to discharge responsibilities; and (7) Any other factor which, in the discretion of the hearing officer, is necessary to ensure the orderly and proper conduct of the hearing and the creation of a complete and accurate hearing record or which is necessary in order to protect confidential information where confidentiality cannot be waived by the appellant. 8. Fair Hearing Procedures a. Procedures (1) At a fair hearing concerning the denial of an application for or the adequacy of SNAP benefits, the appellant must establish that the district denial of assistance or benefits was not correct or that the appellant is eligible for a greater amount of benefits. (2) Except where otherwise established by law or regulation, in fair hearings concerning the discontinuance, reduction or suspension of SNAP benefits, the district must establish that its actions were correct. b. Decision - The fair hearing decision must be supported by and in accordance with substantial evidence. c. Rules of Evidence - Technical rules of evidence followed by a court of law need not be applied. Irrelevant or unduly repetitious evidence and/or cross-examination may be excluded at the discretion of the hearing officer. Privileges recognized by law will be given effect. d. Reproduction or Copy of Original Material - Any written record or document or part thereof to be offered as evidence may be offered in the form of a reproduction or copy where such reproduction or copy is identified satisfactorily as a complete and accurate reproduction or copy of the original material. e. Attorneys for parties in fair hearings have the same authority to issue subpoenas as is possessed by attorneys under section 2302 of the Civil Practice Law and Rules. 9. Consolidated Fair Hearings a. Basis - The Department may consolidate fair hearings where two or more persons request fair hearings in which the individual issues of fact are not disputed and the sole issue in each request is an objection to: (1) Federal or State law or regulation, or local policy; or (2) A change in federal or State law. b. Presenting he Case - Each person whose case has been consolidated with another person’s case has the right to: (1) Present one's own case or have one's case presented by a representative; and (2) Withdraw from the consolidated fair hearing and have an individual fair hearing. 10. The Hearing Record a. Contents of The Record – Only the Department may record a fair hearing. A written transcript or recording of the fair hearing testimony, the fair hearing exhibits, the hearing officer's official report including the recommended decision of the hearing officer, all papers and requests filed in the proceeding prior to the close of the fair hearing, and the fair hearing decision constitute the complete and exclusive record of the fair hearing. Where a decision without hearing is issued in accordance with this section, the documents submitted by the appellant and the district constitutes the complete and exclusive record of the fair hearing. b. Review of Record - The exclusive record of the fair hearing is confidential; however, the exclusive record may be examined by either party or their authorized representative at the Office of Administrative Hearings, or upon request at some other location subject to the approval of the Office of Administrative Hearings. References: 358.5 The Fair Hearing Process CFR 273.15 Fair Hearings O. Decision and Compliance 1. All Decisions a. Decision Content - The fair hearing decision issued by the Commissioner: (1) Must be based exclusively on the fair hearing record, or in the case of a decision without hearing, on the documents submitted by the appellant and the district. (2) Must be in writing and must set forth the fair hearing issues, the relevant facts, and the applicable law, regulations, and approved policy, if any, upon which the decision is based. (3) Must make findings of fact, determine the issues and state reasons for the determinations and when appropriate, direct specific action to be taken by the district. (4) May address the violation of any provision of this section by the district, including but not limited to, violations of regulations concerning notice, aid continuing and provision of documents and records and set forth appropriate relief for such violations. b. Final and Binding - Upon issuance, the decision is final and binding upon the district and must be complied with in accordance with this Section. c. Notification - A copy of the decision, accompanied by written notice to the appellant of the right to judicial review, will be sent to each of the parties and to their representatives, if any. In addition, such notice will advise the appellant that the appellant or the appellant's authorized representative may request the Department's assistance in obtaining compliance with the decision. 2. Decision Without Hearing a. Basis - Upon the Commissioner's own motion or upon request of an appellant in cases in which there is no material issue of fact to be resolved, a decision may be issued without a hearing. The determination to issue a decision without a hearing rests solely within the discretion of the Commissioner. b. Request for Decision Without A Hearing - A request for a decision without a hearing must be accompanied by sufficient information to enable the Commissioner to ascertain whether any unresolved material issue of fact exists, and should contain a full and clear statement of the issues and of the appellant's position on these issues. c. district Responsibilities - When the Commissioner determines that a decision without hearing is appropriate, the Office of Administrative Hearings will send the request for a decision without hearing, or the request for a hearing, along with any supporting documents to the district involved. Within 10 business days of receipt of these documents, the district must forward to OAH, the appellant, and the appellant's representative, a response containing sufficient information to ensure resolution of the dispute. d. Comments or Rebuttal by Appellant - Within 10 business days of the receipt of the documents submitted by the district, the appellant or authorized representative may submit comments or rebuttal to OAH with copies to the other parties. e. Reschedule Fair Hearing - At any point after a request for a decision without a hearing has been made, if it appears that there is a material and unresolved issue of fact relating to the issue or issues upon which the hearing was requested, the appellant and the district will be informed that a fair hearing will be scheduled upon notice to all parties. f. Decision - A decision without a hearing will be issued by the Commissioner based upon the papers submitted in accordance with this Section. 3. Direction Relative to Similar Cases When a fair hearing decision indicates that an district has misapplied provisions of law, Department regulations, or such agency’s own State-approved policy, the Office of Administrative Hearings letter transmitting such decision to such agency may contain a direction to the district to review other cases with similar facts for conformity with the principles and findings in the decision. 4. Compliance See district Responsibilities, Subsection M of this Section. 5. Compliance with Direction Relative to Similar Cases When a direction has been given to a district to correct a misapplication of law, Department regulations or such district's own State-approved policy in all cases similar to the one in which a decision has been issued, such district must report the actions it has taken to comply with such direction to the Department within 30 days after receipt of the direction. The district must make such additional reports as the Department may require. 6. Corrected Decisions and Reopened Hearings a. Corrected Decisions - The Commissioner may review an issued fair hearing decision for purposes of correcting any error found in such decision. (1) After review, the Commissioner may correct any error occurring in the production of an issued fair hearing decision including, but not limited to, typographical and spelling errors. (2) After review, on notice to the parties, the Commissioner may correct any error of law or fact which is substantiated by the fair hearing record. (3) During the pendency of any review of an issued fair hearing decision, the original decision is binding and must be complied with by the district in accordance with the provisions of this Section. b. Reopened Hearings - On notice to all parties, the Commissioner may reopen a previously closed fair hearing record for purposes of completing such record. If such reopening occurs subsequent to the issuance of a fair hearing decision, the provisions of paragraph 3 above apply. References: 358.6 Decision and Compliance; 387.21 Implementation of a Fair Hearing Decision P. Agency Conferences 1. Definition Agency conference means an informal meeting at which an applicant/recipient may have any decision of a district concerning the applicant's or recipient's SNAP benefits, reviewed or may have any other aspect of the applicant's or recipient's case reviewed by an employee of the district who has the authority to change the decision with which the applicant or recipient disagrees. 2. Conference Before the Fair Hearing At any reasonable time before the date of the fair hearing, the applicant/recipient may request that the district schedule an agency conference before the appellant's fair hearing to review the district decision for which the appellant has requested the fair hearing. 3. Conference Without a Fair Hearing Request Even though the applicant/recipient has not requested a fair hearing, the applicant/recipient may request an agency conference to review any action on their case. 4. Encourage Agency Conferences The district must encourage the use of agency conferences to settle disputes and complaints concerning actions regarding an applicant/recipient’s SNAP benefits, so as to eliminate the need to hold fair hearings wherever the dispute can be resolved by scrutiny of documents and/or thorough investigation. 5. Holding Agency Conference The district must hold agency conferences when such conference is requested as provided for in this Section. The conference may not be used to inhibit the appellant's right to a fair hearing. Agency conferences must be scheduled before the date of the fair hearing. If the appellant is contesting a denial of expedited participation, the conference must be scheduled within two business days of the conference request, unless the appellant requests a later date. 6. Necessary Information and Documentation The district must bring the necessary information and documentation to any agency conference, including a telephone conference, to explain the reason for the agency determination and to provide a meaningful opportunity to resolve the problem. 7. Representative Must Attend Except for telephone agency conferences approved according to paragraph (8) below, a representative of the district must appear with the case record at the agency conference. Such representative must have reviewed the case and must have the authority to make binding decisions on behalf of the district, including the authority to withdraw the intended action. 8. Telephone Conferences The district may provide telephone conferences upon prior approval of the Office of Administrative Hearings of the Department. The Office of Administrative Hearings may approve such requests in its discretion, where holding an in-person conference is not feasible. NOTE: This approval is not intended to require a district to request Department permission in order to have day to day discussions of a case with a client by telephone. Nor was it intended to cover the situation where a client formally requests an agency conference and for reasons such as disability, the client requests that the conference be conducted by telephone. The telephone conference is meant to apply to situations where a district has found that it would not be feasible to offer in-person conferences to a particular group of clients or for a particular class of actions it intends to take. In such situations application for approval of telephone conferences should be sent to the Office of Administrative Hearings pursuant to Dept. Reg. 358-4.2(i). 9. Copies of Correspondence The district must send copies of all correspondence relating to the conference and fair hearing to the authorized representative of the appellant. References: 358-2.4 Agency Conference TA Source Book: Chapter 7 Q. Right to Use SNAP to Purchase Delivered Meals 1. Persons Eligible Eligible household members and their spouses who are 60 years of age or older, or members who are homebound, feeble, physically handicapped or otherwise disabled to the extent that they are unable to adequately prepare all their meals, may use all or any part of their monthly allotment to purchase meals from a non-profit meal delivery service (Meals-on-Wheels). The delivery service must be authorized by FNS to accept SNAP benefits. 2. Types of Services Meal delivery services include: a. A local agency which delivers meals to those specified in paragraph 1, above. b. A private non-profit organization which delivers meals to those specified in paragraph 1, above. R. Right to Use SNAP at Communal Dining 1. Persons Eligible Eligible household members and their spouses who are 60 years of age or older, or who are recipients of SSI, may use all or any part of their monthly allotment to purchase meals at a communal dining facility. The facility must be authorized by FNS to accept SNAP. 2. Types of Facilities Communal dining facilities include: a. Senior citizens' center, b. Apartment buildings occupied primarily by elderly persons or SSI households, c. Public or private non-profit establishments (eating or otherwise) that feed elderly persons or SSI recipients, d. Federally-subsidized housing for the elderly at which meals are prepared and serviced to residents. S. Homeless Meal Provider Program Non-profit or publicly operated facilities such as shelters for the homeless and soup kitchens which provide prepared meals to homeless persons may be authorized to receive SNAP in payment for the meals provided. In order to receive SNAP, the facility must first obtain certification from the Department that it provides meals to the homeless (homeless meal provider). It then must be authorized by the United States Department of Agriculture (USDA) as a retailer eligible to accept SNAP. 1. Provider Responsibilities The following applies to SNAP use to pay for meals from a homeless meal provider: a. The provider may only include cost of food purchased when determining the cost of the meal. Such things as a value of donated foods, the cost of food preparation and serving, storage or administrative costs may not be factored in when determining the cost of the meal. b. The provider may not require payment from persons who are eligible to pay with SNAP while providing free meals to other people. If there is a meal charge, it must apply equally to all people served. However, SNAP recipients may voluntarily contribute SNAP if the meal provided is free. c. The provider may receive SNAP in payment for meals only from homeless persons. Persons who are not homeless may not use their SNAP to buy meals from a homeless meal provider. d. The provider may redeem SNAP through authorized food wholesalers and retailers but not through financial institutions (banks). e. Neither the homeless meal provider nor any employee designated by the provider can be an authorized representative for a homeless SNAP applicant/recipient. f. The provider must comply with all USDA rules and procedures regarding handling of food coupons such as change making security, reporting and redemptions. 2. Local District Responsibilities The district has no direct responsibility for certifying homeless meal providers or monitoring the use of SNAP in these facilities. This is done by the Department and USDA. However, districts may not allow a homeless meal provider to act as the authorized representative for a homeless person in the provider's facility. References: CFR 273.11 Action on Households with Special Circumstances 387.1 Definitions 387.16 Special Provisions for Household Circumstances