(4) A request for a fair hearing to review the denial of, the failure to act on an application for, or [to dispute] the adequacy of a HEAP [benefits] benefit must be [requested] made no later than 60 days after the mailing of the notice [; however, in no event may a hearing request made more than 105 days after the district terminates the receipt of applications for the program year be accepted]. Notwithstanding the provisions of this Part and Part 393 of this Title, no person shall be certified as eligible to receive a HEAP benefit as a result of a fair hearing if no federal funds are available for such purpose. Federal funds are available for the provision of a HEAP benefit until the end of the federal fiscal year succeeding the end of the HEAP program year for which such benefit is claimed. The issuance of a HEAP benefit in compliance with a fair hearing decision can only be provided if the hearing request is made during the period of time when federal funds are available.

Subdivision (e) of section 393.5 of Title 18 NYCRR is amended to read as follows:

(e) Hearings provided for under this section must be requested no later than 60 days after the [sending] mailing of [appropriate] the notice. [In no event shall a hearing request made more than 105 days after the district terminates the receipt of applications for the program year be accepted.] Notwithstanding the provisions of this Part and Part 358 of this Title, no person shall be certified as eligible to receive a HEAP benefit as a result of a fair hearing if no federal funds are available for such purpose. Federal funds are available for the provision of a HEAP benefit until the end of the federal fiscal year succeeding the end of the HEAP program year for which such benefit is claimed. The issuance of a HEAP benefit in compliance with a fair hearing decision can only be provided if the hearing request is made during the period of time when federal funds are available.

1. Statutory authority:

Social Services Law (SSL) § 20(3)(d) authorizes the Office of Temporary and Disability Assistance (OTDA) to promulgate regulations to carry out its powers and duties.

SSL § 22(8) requires OTDA to promulgate regulations as may be necessary to administer its fair hearings process.

SSL § 97 requires that each social services district participate in the federal Low-Income Home Energy Assistance Program (LIHEAP) to assist eligible households in obtaining home energy assistance benefits.

The federal LIHEAP statutes at 42 USC § 8621, et seq. authorize the Secretary of the United States Department of Health and Human Services to provide grants to States to assist low income households, primarily those with the lowest incomes that pay a high proportion of household income for home energy, in meeting their immediate home energy needs. New York State OTDA operates the Home Energy Assistance Program (HEAP) with the federal block grant funds provided for under the LIHEAP statutes.

2. Legislative objectives:

It was the intent of the Legislature in enacting SSL § 97 that OTDA establish rules, regulations and policies so that eligible households may obtain home energy assistance in accordance with federal and state requirements and standards promulgated by OTDA. Additionally, it was the intent of the Legislature in enacting the above statutes that OTDA establish rules in order to assure that the due process rights of applicants for and recipients of HEAP are adequately protected. Furthermore, these statutes give OTDA the authority to promulgate regulations concerning the administration of the fair hearings process.

3. Needs and benefits:

The regulations governing the fair hearings process for HEAP are contained in Parts 358 and 393 of Title 18 NYCRR. These proposed amendments are necessary due to a recent court order and stipulation of settlement in the Pedersen v. Hansell case. On May 10, 2010, the United States District Court, Eastern District of New York ordered that OTDA commence rule making proceedings to eliminate the 105 day rule set forth in 18 NYCRR § 358-3.5(b)(4) and § 393.5(e). These amendments would eliminate the 105 day statute of limitations imposed on requesting a HEAP fair hearing and clarify that federal HEAP funds are available for a finite period of time. If a decision after a fair hearing finds that an individual was eligible for a regular HEAP benefit or a larger regular HEAP benefit, federal funds are available only until the end of the federal fiscal year succeeding the end of the HEAP program year for which such benefit is claimed. The issuance of a regular HEAP benefit in compliance with a fair hearing decision can only be provided if the hearing request is made during the period of time when federal funds are available.

4. Costs:

Any additional HEAP benefits to be awarded as a result of the elimination of the 105 day statute of limitations would be 100% federally-funded. As a result, there would be no additional programmatic costs to the State or the social services districts resulting from this amendment.

It is not anticipated that there would be administrative costs associated with the elimination of the 105 day statute of limitations. This amendment would only have a limited impact on the volume of requests for fair hearings. As a result, the State and the social services districts should be able to address any increase in fair hearing requests, appearances and decisions by means of existing personnel, processes and procedures.

5. Local government mandates:

The proposed amendments may have a nominal impact on local social service districts. Social services districts are required to send a representative to attend the underlying hearing and to be prepared to defend the case on the merits. Under the proposed amendments, the administrative hearing would proceed to the merits rather than be dismissed on procedural grounds. As such, there may be an increased likelihood of action necessary by the social services districts to comply with resulting client-favorable fair hearing decisions that prior to the regulatory amendments might have resulted in procedural dismissals of the hearing requests. However, the social services districts already have the necessary processes and procedures in place to comply with a potential increase in the number of client-favorable fair hearing decisions resulting from this amendment.

These proposed amendments would not impose any additional programs, services, duties or responsibilities upon the social services districts, other than the above.

6. Paperwork:

There would be no additional forms required to support this process.

7. Duplication:

These proposed amendments would not duplicate, overlap or conflict with any existing State or Federal regulations. This change is necessary to be in compliance with a court ordered stipulation of settlement.

8. Alternatives:

The alternative is to leave Parts 358 and 393 intact. However, this would subject OTDA and the social services districts to additional litigation since these regulatory amendments were so ordered by the Federal District Court.

9. Federal standards:

The proposed amendments would not conflict with federal standards for LIHEAP.

10. Compliance schedule:

Social services districts will be in compliance with this rule upon the effective date of the regulation.

1. Effect of rule:

The proposed regulatory amendments would not affect small businesses. The proposed amendments may have a nominal impact on social services districts. Social services districts are required to send a representative to attend the underlying hearing and to be prepared to defend the case on the merits. Under the proposed amendments, the administrative hearing would proceed to the merits rather than be dismissed on procedural grounds. As such, there may be an increased likelihood of action necessary by the social services districts to comply with resulting client-favorable fair hearing decisions that prior to the regulatory amendments might have resulted in procedural dismissals of the hearing requests. However, the social services districts already have the necessary processes and procedures in place to comply with a potential increase in the number of client-favorable fair hearing decisions resulting from this amendment.

2. Compliance requirements:

These proposed amendments are necessary due to a recent court order and stipulation of settlement in the Pedersen v. Hansell case. On May 10, 2010, the United States District Court, Eastern District of New York ordered that OTDA commence rule making proceedings to eliminate the 105 day rule set forth in 18 NYCRR § 358-3.5(b)(4) and § 393.5(e). These amendments would eliminate the 105 day statute of limitations imposed on requesting a HEAP fair hearing and clarify that federal HEAP funds are available for a finite period of time. If a decision after a fair hearing finds that an individual was eligible for a regular HEAP benefit or a larger regular HEAP benefit, federal funds are available only until the end of the federal fiscal year succeeding the end of the HEAP program year for which such benefit is claimed. The issuance of a regular HEAP benefit in compliance with a fair hearing decision can only be provided if the hearing request is made during the period of time when federal funds are available.

3. Professional service:

The proposed amendments would not require small businesses or local governments to hire additional professional services.

4. Compliance costs:

Any additional HEAP benefits to be awarded as a result of the elimination of the 105 day statute of limitations would be 100% federally-funded. As a result, there would be no additional programmatic costs to the State or the social services districts resulting from this amendment.

It is not anticipated that there would be administrative costs associated with the elimination of the 105 day statute of limitations. This amendment would only have a limited impact on the volume of requests for fair hearings. As a result, the State and the social services districts should be able to address any increase in fair hearing requests, appearances and decisions by means of existing personnel, processes and procedures.

5. Economic and technological feasibility:

All small businesses and local governments have the economic and technological ability to comply with these proposed regulations.

6. Minimizing adverse impact:

It is anticipated that there will be no adverse economic impact on local governments and small businesses.

7. Small business and local government participation:

Local districts did not participate in the development of the proposed amendments because this proposal is not optional. It is necessary to comply with the court order and stipulation of settlement in Pedersen v. Hansell. An Informational Letter (10-INF-19) was distributed to all social services districts on August 31, 2010 explaining the stipulation of settlement in Pedersen v. Hansell. The Informational Letter provided contact information in case the social services districts had questions or concerns. Thus far, OTDA has not received any negative comments from the social services districts regarding the elimination of the 105 day rule for requesting a HEAP fair hearing, which was explained in the Informational Letter.

1. Types and estimated numbers of rural areas:

The proposed regulatory amendments may have a nominal impact on the 44 rural social services districts in the State. Social services districts are required to send a representative to attend the underlying hearing and to be prepared to defend the case on the merits. Under the proposed amendments, the administrative hearing would proceed to the merits rather than be dismissed on procedural grounds. As such, there may be an increased likelihood of action necessary by the rural districts to comply with resulting client-favorable fair hearing decisions that prior to the regulatory amendments might have resulted in procedural dismissals of the hearing requests. However, the social services districts already have the necessary processes and procedures in place to comply with a potential increase in the number of client-favorable fair hearing decisions resulting from this amendment.

2. Reporting, recordkeeping and other compliance requirements; and professional services:

No additional reporting, recordkeeping or compliance would be required by the rural social services districts, other than noted above.

3. Costs:

Any additional HEAP benefits to be awarded as a result of the elimination of the 105 day statute of limitations would be 100% federally-funded. As a result, there would be no additional programmatic costs to the rural social services districts resulting from this amendment.

It is not anticipated that there would be administrative costs associated with the elimination of the 105 day statute of limitations. This amendment would only have a limited impact on the volume of requests for fair hearings. As a result, the rural social services districts should be able to address any increase in fair hearing requests, appearances and decisions by means of existing personnel, processes and procedures.

4. Minimizing adverse impact:

It is anticipated that there will be no adverse economic impact on rural social services districts.

5. Rural area participation:

Social services districts in rural areas did not participate in the development of the proposed amendments because this proposal is necessary to comply with the court order and stipulation of settlement in Pedersen v. Hansell. An Informational Letter (10-INF-19) was distributed to all social services districts on August 31, 2010 explaining the stipulation of settlement in Pedersen v. Hansell. The Informational Letter provided contact information in case the social services districts had questions or concerns. Thus far, OTDA has not received any negative comments from the social services districts, including the rural districts, regarding the elimination of the 105 day rule for requesting a HEAP fair hearing, which was explained in the Informational Letter.

A Job Impact Statement is not required for the proposed amendments. It is apparent from the nature and the purpose of the proposed amendments that they would not have a substantial adverse impact on jobs and employment opportunities. The proposed amendments would not substantively affect the jobs of the employees of the local social services districts or OTDA. Thus the changes would not have any adverse impact on jobs and employment opportunities in New York State.