(a) Right to DSS Administrative Review. An applicant, shelter resident, current or former program participant, or household member may request an agency review conference and/or a DSS administrative hearing to seek review of any determinations or actions made under this chapter, as well as any failures to act, or failures to act with reasonable promptness, in implementing the provisions of this chapter.
(b) Agency Review Conference.
(1) If an individual requests an agency review conference pursuant to 68 RCNY § 10-13(a), HRA shall informally review and attempt to resolve the issues raised.
(2) An individual may request an agency review conference without also requesting a DSS administrative hearing. Requesting an agency review conference will not prevent an individual from later requesting a DSS administrative hearing.
(3) An agency review conference must be requested within sixty days after the challenged determination or action, provided further that if a DSS administrative hearing is scheduled, an agency review conference must be requested reasonably in advance of the scheduled hearing date.
(4) A request for an agency review conference will extend the time period to request a DSS administrative hearing as set forth in 68 RCNY § 10-13(c)(2) to sixty days after the date of the agency review conference.
(c) Request for a DSS Administrative Hearing.
(1) An administrative hearing must be requested in writing. Such written request must be submitted by mail, electronic means or fax, or other means as DSS may set forth in an appeals notice.
(2) Except as provided in 68 RCNY § 10-13(b)(4), a request for an administrative hearing must be made within sixty days after the challenged determination or action.
(d) Authorized Representative.
(1) Except where impracticable to execute a written authorization, a person or organization seeking to represent an individual who has requested a conference or hearing under this section must have the individual's written authorization to represent them at an agency review conference or administrative hearing and to review their case record, provided that such written authorization is not required from an attorney retained by such individual. An employee of such attorney will be considered an authorized representative if such employee presents written authorization from the attorney or if such attorney advises DSS by telephone of such employee's authorization.
(2) Once DSS has been notified that a person or organization has been authorized to represent an individual at an agency review conference or administrative hearing, such representative will receive copies of all correspondence sent by DSS to the individual relating to the conference and hearing.
(e) Continued Assistance.
(1) If a program participant requests an administrative appeal of a determination that CityFHEPS rental assistance payments are to be reduced, restricted, suspended or discontinued, such program participant shall have the right to continued receipt of CityFHEPS rental assistance payments in the amount in effect at the time of the determination until the hearing decision is issued pursuant to 68 RCNY § 10-13(l), provided that:
(A) The program participant requests the administrative appeal within ten days of the mailing of the notice of such determination; and
(B) The appeal is based on a claim of incorrect computation or an incorrect factual determination.
(2) There is no right to continued CityFHEPS rental assistance payments pursuant to this subdivision where the sole issue on appeal is one of local, State or Federal law or policy, or change in local, State or Federal law.
(3) CityFHEPS rental assistance payments will not continue pending the issuance of a hearing decision when:
(A) The program participant has voluntarily waived their right to the continuation of such assistance in writing; or
(B) The program participant does not appear at the administrative hearing and does not have a good cause reason for not appearing.
(f) Notice. DSS shall provide the individual who has requested a hearing under this section with notice of the date, time, and location of the administrative hearing no fewer than seven calendar days prior to the scheduled date of the administrative hearing, unless the issue underlying the request for an administrative hearing has been resolved and the individual has withdrawn their hearing request.
(g) Examination of Case Record. The individual who has requested a conference or hearing under this section or their authorized representative has the right to examine the contents of their CityFHEPS Program case file, if one exists, and all documents and records that HRA intends to use at the administrative hearing. Upon request by telephone or in writing, HRA shall provide such individual with copies of all such documents, and copies of any additional documents in the possession of HRA that the individual identifies and requests for purposes of preparing for the administrative hearing. HRA shall provide such documents at no charge reasonably in advance of the administrative hearing. If the request for such documents is made less than five business days before the administrative hearing, HRA must provide the individual with copies of such documents no later than at the time of the administrative hearing.
(h) Adjournment. The administrative hearing may be adjourned for good cause by the administrative hearing officer on their own motion or at the request of the individual who requested the hearing or their authorized representative, or HRA.
(i) Conduct of Administrative Hearing.
(1) The administrative hearing shall be conducted by an impartial hearing officer appointed by DSS who shall have the power to administer oaths and issue subpoenas and who shall have no prior personal knowledge of the facts concerning the challenged determination or action.
(2) The administrative hearing shall be informal, all relevant and material evidence shall be admissible and the legal rules of evidence shall not apply. The administrative hearing shall be confined to the factual and legal issues raised regarding the specific determination(s) for which the administrative hearing was requested.
(3) The individual who requested the hearing shall have a right to be represented by counsel or other representative, to testify, to produce witnesses to testify, to offer documentary evidence, to offer evidence in opposition to the evidence presented by HRA, to request that the hearing officer issue subpoenas, and to examine any documents offered by HRA.
(4) An audio recording, an audio visual recording or written transcript of the administrative hearing shall be made.
(j) Abandonment of Request for Administrative Hearing. Absent a request to reschedule an administrative hearing made prior to the hearing date, DSS will consider an administrative hearing request abandoned if neither the program participant nor their authorized representative appears at the hearing. However, DSS will restore the case to the calendar if, within fifteen calendar days of the scheduled hearing date, the program participant or their authorized representative contacts DSS and provides a good cause reason for failing to appear at the hearing.
(k) Hearing Record. The recording or written transcript of the hearing, all papers and requests filed in connection with the hearing, and the hearing decision collectively constitute the complete and exclusive record of the administrative hearing.
(l) Hearing Decision. The hearing officer shall render a decision based exclusively on the hearing record. The decision must be in writing and must set forth the administrative hearing issues, the relevant facts, and the applicable law, regulations and approved policy, if any, upon which the decision is based. The decision must identify the issues to be determined, make findings of fact, state the reasons for the determinations, and when appropriate, direct HRA to take specific action.
(1) A copy of the decision will be sent to each of the parties and to their authorized representatives, if any. The decision shall include written notice to the individual who had requested the hearing of the right to further appeal and the procedures for requesting such appeal.
(2) HRA is not bound by a hearing decision that exceeds the authority of the hearing officer or that is contrary to federal, State, or local law or these rules. If the Commissioner determines that HRA is not bound by a hearing decision, the Commissioner shall promptly notify the individual who had requested the hearing of such determination, and of the reasons for the determination. Such notification shall be in writing and shall also inform the individual of the right to judicial review.
(m) Additional appeal.
(1) An appeal from a decision of a hearing officer may be made in writing to the Commissioner provided that the Commissioner receives it through the procedures described in the notice accompanying the hearing decision no later than fifteen business days after DSS sends the hearing officer's decision. The record before the Commissioner shall consist of the hearing record, the hearing officer's decision and any affidavits, documentary evidence, or written arguments that the applicant or program participant may wish to submit.
(2) The Commissioner shall render a written decision based on the hearing record and any additional documents submitted by the applicant or program participant or HRA.
(3) A copy of the Commissioner's decision, including written notice to the applicant or program participant of the right to judicial review, will be sent to each of the parties and to their authorized representatives, if any.
(4) Upon issuance, the decision of the Commissioner made pursuant to an appeal under this section is final and binding upon HRA and must be complied with by HRA.
(Added City Record 9/28/2018, eff. 10/28/2018; amended City Record 10/28/2021, eff. 11/28/2021)