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Letter to OTDA Commissioner with Recommendations to Improve Fair Hearing Demonstration Project

Posted on September 14th, 2022

Empire Justice Center, The Center for Elder Law & Justice, New York Legal Assistance Group, Neighborhood Legal Services, Legal Aid Society of New York City, & Bronx Legal Services submitted a Letter to Commissioner Daniel W. Tietz with recommendations to improve the Fair Housing Demonstration Project on June 14, 2022.

 

Read the letter below or download PDF HERE.

VIA EMAIL on June 14, 2022
Daniel W. Tietz, Commissioner
New York State Office of Temporary and Disability Assistance
40 North Pearl Street, Albany, New York 12243

 

Re: Recommendations to Improve the Fair Hearing Demonstration Project

 

Dear Commissioner Tietz:

Thank you for meeting with us on March 30 to discuss OTDA’s remote fair hearing Demonstration project and the concerns and suggestions we sent in August 2021 and in our January 25, 2022 correspondence. Thank you also for sending the documents on April 13. As you requested, we write to provide a summary of our specific recommendations thus far.

 

Notices

Attached please find proposed edits to the notices listed below. We recommend that OTDA review all notices for reading level and edit the notices to be in plain language as much as possible. We did not make this change in the attached documents but we also ask that all notices be in an accessible format such as 14 font size and 1.15 spacing, using a sans serif format.1

  1. Fair Hearing Request Form – Fax or Mail
  2. Acknowledgment of Fair Hearing Request and Confirmation of Aid Status Notice
  3. Notice of Fair Hearing – We recommend creating two notices: one for a telephone hearing, and one for an in-person hearing.
  4. Notice of Telephone Hearing

 

Model Opening Statement

Attached please find our proposed edits to the model opening statement for telephone hearings.

 

Other Recommendations

  1. Increase capacity for the phone lines to ensure that callers more consistently reach staff and staff process hearing and aid continuing requests timely
  2. Train staff at the call center and all staff that process fair hearing requests.2
  3. Promptly clear the backlog of delayed fair hearings. Issue all decisions within 90 days of the fair hearing request3 or within 60 days of a SNAP fair hearing request.4
  4. Waive overpayments.
    1. In any fair hearing where aid continuing has been granted and the decision issued is not favorable to the appellant, the recovery of all aid continuing shall be waived if the fair hearing decision was issued more than 90 days from the date of a fair hearing request or more than 60 days from the date of a SNAP fair hearing request.
    2. In accordance with recent Food and Nutrition Service (FNS) guidance5:
      i. submit a waiver request to FNS to administratively waive pandemic-period agency error or inadvertent household error overpayments (including pandemic-period claims previously adjudicated);
      ii. revise the claims threshold for pandemic-caused over-issuances where the claims are not waived entirely;
      iii. fully implement the regulatory authority to terminate and write off claims for pandemic-period over-issuances; and
      iv. fully implement the regulatory authority to compromise unwaived claims based on financial hardship.
  5.  Create an affirmative opt-in to telephonic hearing for all hearing requests.a. Appellants who request a hearing by phone should be asked for their hearing venue preference (i.e., in person, telephone, video).
    b. Add an option to the online form to allow Appellants to select which hearing venue (i.e., in person, telephone, video) they prefer.
    c. Refer to our attached edits to the Fair Hearing Request Form – Fax or Mail.
  6. Implement a system that allows all ALJs to securely send, receive, exchange, and otherwise share documents in real-time with appearing parties for all phone and video hearings.
  7. Reissue 20 GIS TA/DC 097 and remind ALJs of the requirement that they must transmit Appellants’ documentary evidence to the Agency via encrypted email during the hearing. Also remind ALJs that it is not the responsibility of the Appellant to supply the Agency’s evidence packet to the ALJ.
  8. Add the option for a video hearing as allowed under OAH Transmittal 20-05/20 TA/DC097, dated October 16, 2020.
    1. Provide information on the video options that are currently being developed or considered and allow for advocate input.
  9. Provide training to ALJs on remote fair hearings. In our April 5, 2022 email we requested Word documents of trainings provided to ALJs regarding remote fair hearings. We are in receipt of the public transmittals sent on April 13, 2022. We urge OTDA to develop trainings for ALJs on remote fair hearings with the input of advocates. We suggest that these trainings include how to conduct a remote fair hearing with an interpreter and issues relating to credibility determinations in this context. Please also refer to our proposed edits to the model opening statement.
  10. In furtherance of OTDA’s Transparency Initiatives, provide data or reports produced by OTDA for monitoring the progress of the Demonstration and publish all data on OTDA’s website.6
  11. Provide the following data from March 12, 2020 through the present, and publish all reporting on OTDA’s website:7
    1. Number of hearings requested by county and issue
    2. Number of hearings conducted via telephone by county and issue
    3. Number of hearings conducted via telephone by county and issue
    4. Number of hearings conducted via video by county and issue
    5. Number of hearings conducted in person by county and issue
    6. Number of telephone hearings that have been defaulted by county and issue
    7. Number of in-person hearings that have been defaulted by county and issue
    8. Number of video hearings that have been defaulted by county and issue
    9. Number of telephone hearings in which the Appellant submitted evidence by county and issue
    10. Number of in-person hearings in which the Appellant submitted evidence by county and issue
    11. Number of video hearings in which the Appellant submitted evidence by county and issue
    12. Number of telephone hearings in which an interpreter was present by county and issue
    13. Number of in-person hearings in which an interpreter was present by county and issue
    14. Number of video hearings in which an interpreter was present by county and issue
    15. Number of telephone hearings in which the Appellant was unrepresented by county and issue
    16. Number of in-person hearings in which the Appellant was unrepresented by county and issue
    17. Number of video hearings in which the Appellant was unrepresented by county and issue

12. Improve hearings for LEP individuals by doing the following:

    1. Schedule all hearings for LEP individuals in-person and allow LEP Appellants to affirmatively opt-in to a phone hearing based on their preference.
    2. Provide advocates with any guidance OTDA or OAH has created specifically for interpreters at phone hearings so that advocates can make suggestions for improvements. If no guidance has been issued, create a working group to develop such guidance.
    3. Develop systems to ensure the interpreter is provided with the documents in advance of the hearing.
    4. Require agencies to translate common documents so LEP Appellants can respond to the agency’s evidence.
    5. Improve ALJ Phone Script: Please refer to the edited attached Model Opening Statement.

13. Provide a liaison to advocates on urgent and emergent fair hearing issues.

14. Continue to engage with advocates and stakeholders in developing and improving remote hearing practices and policies.


1 New York State Office of Temporary and Disability Assistance (OTDA) Annual Report (2021), available online at https://otda.ny.gov/resources/reports/OTDA-Annual-Report-2021.pdf.
2 This recommendation relates to a spate of recent cases where fair hearing requests were processed incorrectly, and aid continuing was wrongly denied by front line staff and later corrected by a supervisor.
3 18 N.Y.C.R.R. § 358-6.4; 42 C.F.R. § 431.244(f)(1)
4 7 C.F.R. § 273.15(c)
5 U.S. Department of Agriculture, Food and Nutrition Service, SUPPLEMENTAL NUTRITION ASSISTANCE PROGRAM (SNAP): RECIPIENT CLAIMS ADMINISTRATION CHALLENGES AS A RESULT OF RESPONDING TO THE COVID-19 PUBLIC HEALTH EMERGENCY, Nov. 10, 2021, available at https://fns-prod.azureedge.us/sites/default/files/resource-files/SNAP-claims-administration-flexibility-memo.pdf
6 Office of Temporary Disability Administration, GOVERNMENT TRANSPARENCY INITIATIVES REPORT, October 2021, available at https://otda.ny.gov/news/attachments/OTDA-Transparency-Initiative-Report.pdf.
7 This request models the fair hearing data provided in OTDA’s Annual Report, and supplements it with data related to the Demonstration. Office of Temporary Disability Administration , 2021 ANNUAL REPORT, available at https://otda.ny.gov/resources/reports/OTDA-Annual-Report-2021.pdf


 

We thank for you again for the opportunity to engage in these discussions. The telephonic hearing process and the ongoing delays in scheduling, issuing decisions and compliance are causing unacceptable harm to appellants throughout New York State. We continue to hear of ways in which the current system fails to uphold the due process rights of public benefit recipients and applicants. The initial recommendations set out in this letter are the first steps in remedying defects that have existed in the “temporary” system that has now been in place for over two years. Should OTDA move forward with any of these recommendations, this should not be construed as acceptance on behalf of the undersigned organizations that all issues with the demonstration project have been identified or resolved. OTDA must continue to engage with advocates and involve stakeholders in developing and improving remote hearing practices and policies.

Respectfully,

 

Belkys Garcia, Staff Attorney
The Legal Aid Society
199 Water Street, 3rd Floor
New York, New York 10038

Susan C. Antos, Senior Attorney
Jessica Radbord, Senior Attorney
Empire Justice Center
119 Washington Avenue, Suite 301
Albany, NY 12210

Kelly Barrett Sarama, Supervising Attorney
Robert Neill, Staff Attorney
Center for Elder Law & Justice
438 Main Street, Suite 1200
Buffalo, New York 14202

Fiona Wolfe, Senior Attorney
Alexia Mickles, Staff Attorney
Empire Justice Center
One West Main Street, Ste. 200
Rochester, New York 14614
(585) 295-5736

Elizabeth Jois, Senior Staff Attorney
Abby Biberman, Senior Supervising Attorney
Rebecca Wallach, Supervising Attorney Evelyn Frank Legal Resources Program
New York Legal Assistance Group
7 Hanover Square, 18th Floor
New York, New York 10004

Paula Arboleda, Director of Health Advocacy
Jack Newton, Director of Public Benefits
Legal Services NYC
349 East 149th Street, 10th Floor
Bronx, New York 10451


Letter to Commissioner White, Rochester City School District, In Support Of Funding For Restorative Practices

Posted on April 9th, 2019

 

April 9, 2019

Commissioner Van Henri White

131 W. Broad Street

Rochester, NY 14614

 

Dear Commissioner White:

 

I am writing to you on behalf of Empire Justice Center to ask that the Rochester City School District (RCSD) maintains full funding and support for the work of the Roc Restorative Team. I am currently conducting a collaborative program study on Restorative Practices in RCSD with the Roc Restorative Team and Partners in Restorative Initiatives, and have first-hand knowledge of the power and the outcomes of this work in creating a positive school environment. From that perspective, I can affirm that maintaining the utilization of Restorative Practices at RCSD will provide a vital benefit to the entire school community. Indeed, without support for this team, the new Restorative Code of Conduct will be severely undermined. The new code of conduct has, in just a few years, helped leverage significantly higher academic outcomes, helped address the school to prison pipeline, and achieved safer school environments.

 

Restorative Practices aim to create school communities rooted in empathy. Creating a positive school climate also creates a safer environment for students and staff. Modeling and teaching core life skills such as pursuing accountability and repairing harm is meaningful and life changing for general education students, special education students, parents, and staff alike. But this work can only be done with continued budgetary support for the Roc Restorative Team.

 

Specifically, we have documented the impact of implementing Restorative Practices through a nearly 47% reduction of Violent and Disruptive Incident Reporting (VADIR) events between the 2015-16 school year and the 2017-18 year. Positive school climates equal safer schools for all, and Restorative Practices give school communities the tools to achieve both.

 

Furthermore, by keeping more students in safer school more often, Restorative Practices have also improved academic outcomes. Two years into implementing the new Code of Conduct in 2017-18, students with at least one prior suspension failed almost 2,000 fewer classes. By training district staff in Restorative Practices, the Roc Restorative Team helps students who are at the greatest risk of entering the School-to-Prison Pipeline and is leveraging better outcomes for students.

 

To continue to achieve these positive outcomes for our school community, Empire Justice Center urges the Rochester City School District to maintain its commitment to this work and to the Roc Restorative Team.

 

Respectfully submitted,

Sujata Ramaiah, J.D.

Empire Justice Center


Empire Justice Letter of Support for Name Change Legislation

Posted on December 21st, 2015

New York’s legislature has long understood that publication and release of sensitive information in name change proceedings places certain applicants at increased risk of harm – sometimes from the very people that the applicant is specifically seeking safety. Such statutory protection is especially important for survivors of domestic violence, sexual violence, stalking, and human trafficking, as well as those in the transgender communities – groups that seek sealed, unpublished name changes at the greatest rates.  A.2242 (Bronson)/S.5240 (Savino) not only is in line with existing policy, but enhances and clarifies the law for name change applicants who need the benefit of the law’s critical safety protections.   We ask that you sign this bill into law.

CLICK HERE to read our letter of support.


Empire Justice Letter of Support: Restore Meaning to the Medicaid Managed Care Prescriber Prevails Law

Posted on August 4th, 2015

Empire Justice Center urges Governor Cuomo to sign A.7208/S.4893 amending New York Social Services Law (SSL) § 364-j(25) regarding prescriber prevails procedures in Medicaid managed care.

We ask that Governor Cuomo sign A.7208/S.4893 and fulfill the promise made to the poorest and sickest New Yorkers by the Legislature and the Executive when the original Medicaid managed care prescriber prevails statute was enacted.

CLICK HERE to read the letter.


Joint Letter of Support: Pass Legislation to Protect Crime and Domestic Violence Victims!

Posted on June 1st, 2015

In New York State, and nationwide, no victim of domestic violence or other person threatened with a crime should be afraid to access police or emergency assistance because doing so may jeopardize their housing.  The below-listed organizations jointly express our strong support of A.1322 Lavine/S.4955 Robach, which protects the rights of victims of crime to seek police and emergency aid.  This legislation is necessary to ensure that New Yorkers can call for help, avoid homelessness and housing instability caused by the unjust application of nuisance ordinances, and to prevent further acts of violence and abuse against victims of domestic violence and other crimes.

CLICK HERE to read the full letter, signed by 74 organizations around New York State.


Empire Justice Letter to the Governor: Sign Critical Protections for Domestic Violence Victims into Law

Posted on November 7th, 2013

Governor Andrew Cuomo
Executive Chamber
State Capitol
Albany, NY 12224

Re: A.6547-b (Weinstein)/S.5605 (Robach)

Dear Governor Cuomo,

We are writing to respectfully ask you to sign A.6547-b (Weinstein)/S.5605 (Robach) into law.  This bill seeks to address a troubling practice that undermines both abuser accountability and a domestic violence victim’s trust in the justice system.  New York’s case law has consistently held that abusers will be culpable for willful violations of orders of protection meant to control their conduct, even when the domestic violence victim, or protected party, acquiesced or consented to contact despite the court order. [1]  However, regardless of this clear offender accountability policy, in some communities confusion still exists among law enforcement, attorneys, victim advocates, judges and others about the enforceability of orders of protection– against protected parties for whom the order of protection was granted.

Holding someone other than the enjoined party liable for violation of the order of protection not only offends the most fundamental due process guarantees of notice and the opportunity to be heard, but also state law prohibitions against the issuance of mutual orders of protection absent proper jurisdiction.  If a court does not have the legal authority to actually issue an order of protection against someone, there is no legal authority upon which to hold that same person in contempt for its violation. 

Despite the legal impropriety of such practices, in some New York communities domestic violence victims with orders of protection are advised they can “violate their own order of protection,” or are threatened with arrest where the abuser whom the order of protection is against intentionally disregards the court’s order and has contact with them.  In the most egregious cases, protected parties have even been arrested and charged with crimes such as criminal contempt, criminal solicitation or other accomplice liability.

This bill seeks to address this problem by providing unequivocal notice on the Victim’s Rights Notice and on all civil and family offense-related criminal orders of protection that a protected party may not be civilly or criminally liable for violations of the order of protection issued on their behalf.  It also makes clear that the enjoined party’s contact or communication with the protected party will not impact the order’s validity and that the order may only be modified or terminated by the court.  In addition to the notice provisions, the bill also makes amendments in the Criminal Procedure Law, Domestic Relations Law and the Family Court Act which prevent imposition of liability upon protected parties.

Bad practices of this nature have been condemned in a variety of ways across the country.  In October 2012, the International Association of Chiefs of Police [2] passed a formal resolution decrying this practice by law enforcement officers nationwide.  California [3] and Minnesota [4] enacted legislation specifically prohibiting the imposition of liability against protected parties who have contact with the enjoined party.  Appellate courts in Ohio [5] and Indiana [6] have both struck down criminal charges lodged against protected parties.

Civil and criminal orders of protection are a critical tool for victims of domestic violence statewide.  Despite their undeniable importance, orders of protection also cannot insure a victim’s safety or guarantee that abuse will end.  In fact, the most dangerous time for a victim of domestic violence is when that victim takes steps to leave the relationship. [7]  For some victims, stalking, [8] violence or other retaliatory conduct can escalate in the wake of court intervention.  One two-year follow up study of batterers found that almost half (48.8%) re-abused their victims after the issuance of an order of protection. [9]  Another national study found that orders of protection were violated by the abusive party in 67% of rape cases, 50% of physical assault cases and 69% of stalking cases. [10]  Given the power and control dynamics inherent in domestic violence cases, abusers may intentionally engage in a campaign specifically designed to coerce victims into dropping civil cases, recanting, not participating in criminal prosecutions or reuniting.  A February 2011 article in The New York Times powerfully detailed this dynamic in describing the increased use of recorded jailhouse calls from defendants to their victims as evidence in criminal prosecutions to help prove order of protection violations, as well as to explain victim recantation or non-participation. [11]  This strategic abusive technique was further evaluated in a 2011 study [12] published in the journal Social Science and Medicine, which found that batterers use a systemic pattern of blaming the victim, minimizing their abusive conduct, and utilizing sympathetic and emotional appeals to successfully persuade victims not to participate in criminal proceedings.

While it may appear counter-intuitive, victims with orders of protection may acquiesce in or have contact with their abuser for a variety of complicated, yet rational, reasons.  Abuser control and victim fear does not end simply upon the issuance of an order of protection, particularly given the demonstrated increase in potential targeted retaliatory abuse.  Having contact with the batterer may allow the victim to better assess the ongoing level of dangerousness the abuser poses to the family or provide some de-escalation or appeasement of such threat.  The parties may also have an intertwined economic relationship, particularly where the batterer has used financial abuse to foster victim dependence and maintain coercive economic control over the family’s finances.  Where the parties are co-parenting, circumstances involving their children in common commonly arise that may demand some contact or communication.  In some cases, the abuser and victim may attempt to preserve the relationship or re-unite without modifying or terminating the order of protection accordingly.

While the justice system may be reasonably frustrated with resource-intensive and complex cases involving coercive control and domestic violence dynamics, shifting the focus away from offender accountability onto victim conduct is misplaced and dangerous.  Arresting, or even threatening such arrest of, protected parties has many long-term, and potentially dangerous, consequences for communities.  It erodes victim trust in the justice system and creates hesitation for seeking legal intervention or law enforcement assistance when violations occur.  It chills victims’ willingness to even seek order of protection relief in our state courts.  More alarmingly, it serves to embolden batterers by giving them the weight of the criminal justice system to both enforce and condone their illegal and manipulative conduct.  Understanding that they can have the victim arrested and charged for “violating” the order of protection becomes a powerful weapon at the abuser’s disposal.  Such policies undermine the purpose of a system that was specifically intended to hold offenders accountable and protect victims and their children.  Discouraging victim access to protection and enforcement of orders of protection places them at risk for additional violence, abuse, and death.

By making it clear that offenders are alone accountable for their own contemptuous and manipulative conduct, this bill will no longer tolerate misuse of the justice system against the very victims it was designed to protect.  For these reasons, Empire Justice Center urges the Governor to sign this offender accountability bill into law as soon as possible.

Sincerely,

Amy Schwartz
Senior Attorney

Kristin Brown Lilley
Vice President for Policy & Government Relations

End Notes:
 [1] See, for example, People v. Caijas, 19 N.Y.3d 697, 979 N.E.2d 240 (2012); People v. Van Guilder, 29 A.D.3d 1226 (3rd Dept. 2006); People v. Zito, 2001 WL 1263340 (N.Y.City Ct.), 2001 N.Y. Slip Op. 40154(U)
 [2] IACP Resolution available at http://www.iacp.org/resolution/index.cfm?fa=dis_public_view&resolution_id=440&CFID=9536347&CFTOKEN=42458776
 [3] Cal. Pen. Code §13710(b)
 [4] Minn. Stat. Ann. § 518B.01(14)(i)
 [5] Ohio v Lucas, 795 N.E.2d 642 (2003)
 [6] Paterson v. Indiana, 979 N.E.2d 1066, 1068-69 (Ind. Ct. App. 2012)
 [7] Ronet Bachman and Linda Salzman, Bureau of Justice Statistics, Violence Against Women: Estimates From the Redesigned Survey 1 (January 2000); see also National Center for Victims of Crime, “Protective Order Violations—Stalking in Disguise?”, The Source, Volume 4, Number 2 (Fall 2004) http://www.victimsofcrime.org/docs/src/protective-order-violations.pdf?sfvrsn=2
 [8] National Center for Victims of Crime, “Protective Order Violations—Stalking in Disguise?”, The Source, Volume 4, Number 2 (Fall 2004) http://www.victimsofcrime.org/docs/src/protective-order-violations.pdf?sfvrsn=2
 [9] A.R. Klein, “Re-abuse in a Population of Court-restrained Male Batterers: Why Restraining Orders Don’t Work,” in E. Buzawa and C. Buzawa, eds., Do Arrests and Restraining Orders Work?, (Thousand Oaks, CA: Sage, 1996), 192-213.
 [10] Patricia Tjaden & Nancy Thoennes, Nat’l Inst. of Justice, Extent, Nature, and Consequences of Intimate Partner Violence: Findings From the National Violence Against Women Survey, NCJ 181867 52 (July 2000), http://www.ncjrs.gov/pdffiles1/nij/181867.pdf.
 [11] William Glaberson, “Abuse Suspects, Your Calls Are Taped. Speak Up.”, The New York Times (February 25, 2011), http://www.nytimes.com/2011/02/26/nyregion/26tapes.html?pagewanted=all
 [12] Amy Bonomi, Rashmi Gangammaa, Chris R. Lockeb, Heather Katafiasza, David Martin, “Meet me at the hill where we used to park”: Interpersonal processes associated with victim recantation” Social Science & Medicine, Volume 73, Issue 7 (October 2011), Pages 1054–1061 http://www.sciencedirect.com/science/article/pii/S027795361100445X

For more information, please contact:

Amy Schwartz-Wallace
Empire Justice Center
Telesca Center for Justice
One West Main Street, Suite 200
Rochester, NY  14614

P:(585) 454-4060
F:(585) 454-2518
aschwartz@empirejustice.org

Kristin Brown
Empire Justice Center
119 Washington Avenue
Albany, NY  12210

P:(518) 462-6831
F:(518) 935-2852
kbrown@empirejustice.org


“Unfit” for NPR – Let’s Get the Facts Straight on Disability

Posted on March 29th, 2013

Members of the Consortium for Citizens with Disabilities and the SSI Coalition for Children and Families, joined by the Coalition on Human Needs, the Children’s Leadership Council, and other organizations, are concerned that a series recently aired on National Public Radio (“Unfit for Work: The Startling Rise of Disability in America” and accompanying The American Life episode “Trends With Benefits,” both reported by Chana Joffe-Walt) paints a misleading and inaccurate picture of the Social Security programs that serve as a vital lifeline for millions of Americans with severe disabilities.

Click here to read the sign on letter.