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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


Disability Law News – Bulletin Board

Posted on July 31st, 2022

This “Bulletin Board” contains information about recent disability decisions from the United States Supreme Court and the United States Court of Appeals for the Second Circuit.

We will continue to write more detailed articles about significant decisions as they are issued by these and other Courts, but we hope that this list will help advocates gain an overview of the body of recent judicial decisions that are important in our judicial circuit.

SUPREME COURT DECISIONS

Carr v. Saul, 141 S.Ct. 1352 (Apr. 22, 2021)

The Supreme Court held that a claimant is not precluded from raising a legal issue for the first time in U.S. District Court if it was not raised before the Administrative Law Judge (ALJ).  The underlying issue in question in Carr and its companion cases was whether the ALJ was properly appointed under the Appointments Clause of the U.S. Constitution. In the aftermath of Lucia v. Securities and Exchange Commission, 138 S.Ct. 2044 (2018) challenging the constitutionality of SEC ALJs, Carr and other plaintiffs challenged the legitimacy of the ALJs who had denied their disability claims and sought new hearings. The Commissioner argued the plaintiffs had forfeited their Appointments Clause challenges because they had not raised them before SSA during the administrative appeals process. The Supreme Court resolved a conflict in the circuits by holding that given the non-adversarial nature of SSA hearings, issue-exhaustion is not required.

 

Smith v. Berryhill, 139 S.Ct. 1765 (2019)

The Supreme Court held that an Appeals Council dismissal of a request for review is a final decision subject to judicial review.  The Court unanimously held that where the     Appeals Council has dismissed a request for review as  untimely after a claimant has obtained a hearing from an ALJ on the merits, the dismissal qualifies as a “final decision . . . made after a hearing” within the meaning of 42 U.S.C § 405(g). It distinguished its earlier ruling in Califano v. Sanders, 430 U.S. 99, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977), by emphasizing that as opposed to the denial of a request for reopening in Sanders, there had been a decision by an ALJ on the merits of the plaintiff’s claim.

 

Biestek v. Berryhill, 139 S.Ct. 1148 (2019)

In a 6-3 decision, the Court declined to adopt a categorical rule that a vocational expert’s supporting data must be provided in order for the testimony to constitute substantial evidence. But the majority acknowledged that in some cases it may be possible to draw an adverse inference against a VE who refuses to provide supporting data.

 

Astrue v. Capato, ex rel. B.N.C., 132 S.Ct. 2021 (2012)

A unanimous Supreme Court upheld SSA’s denial of survivors’ benefits to posthumously conceived twins because their home state of Florida does not allow them to inherit through intestate succession.  The Court relied on Section 416(h) of the Social Security Act, which requires, inter alia, that an applicant must be eligible to inherit the      insured’s personal property under state law in order to be eligible for benefits. In rejecting Capato’s argument that the children, conceived by in vitro fertilization after her husband’s death, fit the definition of child in Section 416(e), the Court deferred to SSA’s interpretation of the Act.

 

Barnhart v. Thomas, 124 S. Ct. 376 (2003)

The Supreme Court upheld SSA’s determination that it can find a claimant not disabled at Step Four of the sequential evaluation without investigation whether her past relevant work actually exists in significant numbers in the national economy.  A unanimous Court deferred to the Commissioner’s interpretation that an ability to return to past relevant work can be the basis for a denial, even if the job is now obsolete and the claimant could otherwise prevail at Step Five (the “grids”).  Adopted by SSA as AR 05-1c.

 

Barnhart v. Walton, 122 S. Ct. 1265 (2002)

The Supreme Court affirmed SSA’s policy of denying SSD and SSI benefits to claimants who return to work and engage in substantial gainful activity (SGA) prior to adjudication of disability within 12 months of onset of disability.  The unanimous decision held that the 12-month durational requirement applies to the inability to engage in SGA as well as the underlying impairment itself.

 

Sims v. Apfel, 120 S. Ct. 2080 (2000)

The Supreme Court held that a Social Security or SSI claimant need not raise an issue before the Appeals Council in order to assert the issue in District Court.  The Supreme Court explicitly limited its holding to failure to “exhaust” an issue with the Appeals Council and left open the possibility that one might be precluded from raising an issue.

 

Forney v. Apfel, 118 S. Ct. 1984 (1998)

The Supreme Court finally held that individual disability claimants, like the government, can appeal from District Court remand orders.  In Sullivan v. Finkelstein, the Supreme Court held that remand orders under 42 U.S.C. 405(g) can constitute final judgments which are appealable to circuit courts.  In that case the government was appealing the remand order.

 

Shalala v. Schaefer, 113 S. Ct. 2625 (1993)

The Court unanimously held that a final judgment for purposes of an EAJA petition in a Social Security case involving a remand is a judgment “entered by a Court of law and does not encompass decisions rendered by an administrative agency.”  The Court, however, further complicated the issue by distinguishing between 42 USC §405(g) sentence four remands and sentence six remands.

 

SECOND CIRCUIT DECISIONS

Schillo v. Kijakazi, 31 F.4th 64 (2d Cir. Apr. 6, 2022)

The court affirmed the District Court decision under the pre 2017 opinion evidence regulations that applied in this case. It found the ALJ properly accorded lesser weight to the opinions of two treating physicians because one was conclusory and vague and the other, rendered in check-box format, was not supported by the medical evidence. And according to the court, both opinions as to the plaintiff’s tremors and sensory deficits were inconsistent with the medical evidence, which identified only mild tremors, and the plaintiff’s testimony. The court also agreed with the ALJ’s assessment that the opinion of the consultative examiner was entitled to even less weight. It rejected plaintiff’s argument that the ALJ could not make an RFC finding because she had declined to accord controlling weight to any of the medical opinions; the ALJ is entitled to weigh all available evidence to make RFC findings and her conclusion need not perfectly correspond with opinions of record. Finally, the court found that the ALJ’s failure to articulate the so-called Burgess factors for evaluating treating source opinions to be harmless error as it was evident she had applied the substance of the treating physician rule.

 

Colgan v. Kijakazi, 22 F.4th 353 (2d Cir. Jan. 3, 2022)

The court remanded, finding the ALJ erred in failing to accord controlling weight to the opinion of the treating physician under the pre 2017 opinion evidence regulations that applied in this case. The court held the ALJ failed to find good reasons under the old regulations for discounting the opinion of a concussion specialist that the plaintiff would be off task 33% of the day and absent more than four days per month due to her headaches and other impairments. The ALJ also erred in discounting the opinion because it was presented in “check box” form; the opinion was supported by voluminous treatment notes. The court criticized the ALJ for “cherry-picking” particular instances of improvement to create inconsistencies with the treating source opinion. And it criticized the ALJ for relying too heavily on the opinions of consulting physicians, particularly where the consulting opinions did not address or dispute the crux of the treating source’s opinion.

 

Alexander v. Saul, 5 F.4th 139 (2d Cir. July 8, 2021)

The Second Circuit upheld a district court’s refusal to extend the time to appeal its decision affirming the Commissioner’s denial of an SSI claim. Although the Circuit was “sympathetic” to the plaintiff, it concluded the district court had not abused its discretion – even though the plaintiff filed her appeal and request for an extension only two days after the 60-day deadline expired. The district court had reasonably applied the “excusable neglect” factors rather “good cause” standard under Fed. R. App. P. 4(a)(5) because the plaintiff’s failure to appeal was at least partially due to her own inadvertence in failing to notify her attorney of her change of address rather than due to her alleged mental illness. The court refused to toll the Rule 4(a)(5) deadline as it is considered jurisdictional and less flexible than the statute of limitations governing the 60-day limit to seek judicial review under 42 U.S.C. § 405(g).

 

Sczepanski v. Saul, 946 F.3d 152 (2d Cir. 2020)

The court held that ability to complete work during the probationary period is relevant to a disability claim. It remanded for further proceedings at Step five of the Sequential Evaluation to determine whether the claimant could perform work as required during the probationary period, including meeting the levels for absenteeism tolerated by the employer.

 

Estrella v. Berryhill, 925 F.3d 90 (2d Cir. 2019),

The Court of Appeals endorsed in strong terms the value of treating source evidence and affirmed its prior treating physician rule cases.  The court faulted the ALJ for failing to consider explicitly the Burgess factors incorporated into the former opinion evidence regulations, which were replaced in 2017 by 20 C.F.R. §§ 404.1520c(a) & 416.920c(a). The new regulations were not considered by the court.

 

Lockwood v. Comm’r of SSA, 914 F.3d 87 (2d Cir. 2019)

The Court of Appeals remanded because the ALJ had not met his affirmative obligation under SSR 00-4p to inquire about any possible or apparent conflicts between vocational testimony and the Dictionary of Occupational Titles (DOT).  The court found the ALJ did not meet his burden simply by asking the vocational expert if her testimony was consistent, especially where the ALJ found the plaintiff could not reach overhead, but the three jobs to which the VE testified all required frequent or occasional reaching.

 

Lesterhuis v. Colvin, 805 F.3d 83 (2d Cir. 2015)

 The Court of Appeals remanded for consideration of a  retrospective medical opinion from a treating physician submitted to the Appeals Council, citing Perez v. Chater, 77 F.3d 41, 54 (2d Cir. 1996). The ALJ’s decision was not supported by substantial evidence in light of the new and material medical opinion from the treating physician that the plaintiff would likely miss four days of work per month. Since the vocational expert had testified a claimant who would be absent that frequently would be unable to work, the physician’s opinion, if credited, would suffice to support a determination of disability. The court also faulted the district court for identifying gaps in the treating physician’s knowledge of the plaintiff’s condition. Citing Burgess v. Astrue, 537 F.3d 117, 128 (2d Cir. 2008), the court reiterated it may not “affirm an administrative action on grounds different from those considered by the agency.”

 

Greek v. Colvin, 802 F.3d 370 (2d Cir 2015)

The court remanded for clarification of the treating source’s opinion, particularly as to the claimant’s ability to perform postural activities. The doctor had also opined that Mr. Greek would likely be absent from work more than four days a month as a result of his impairments. Since a vocational expert testified there were no jobs Mr. Greek could perform if he had to miss four or more days of work a month, the court found the ALJ’s error misapplication of the factors in the treating physician regulations was not harmless. “After all, SSA’s regulations provide a very specific process for evaluating a treating physician’s opinion and instruct ALJs to give such opinions ‘controlling weight’ in all but a limited range of circumstances.  See 20 C.F.R. § 404.1527(c)(2); see also Burgess, 537 F.3d at 128.” (Emphasis supplied.)

 

McIntyre v. Colvin, 758 F.3d 146 (2d Cir. 2014)

The Court of Appeals for the Second Circuit found the ALJ’s failure to incorporate all of the plaintiff’s non-exertional limitations explicitly into the residual functional capacity (RCF) formulation or the hypothetical question posed to the vocational expert (VE) was harmless error. The court ruled that “an ALJ’s hypothetical should explicitly incorporate any limitations in concentration, persistence, and pace.” 758 F.3d at 152. But in this case, the evidence demonstrated the plaintiff could engage in simple, routine tasks, low stress tasks despite limits in concentration, persistence, and pace; the hypothetical thus implicitly incorporated those limitations.  The court also held that the ALJ’s decision was not internally inconsistent simply because he concluded that the same impairments he had found severe at Step two were not ultimately disabling.

 

Cichocki v. Astrue, 729 F.3d 172 (2d Cir. 2013)

The Court held the failure to conduct a function-by-function analysis at Step four of the Sequential Evaluation is not a per se ground for remand.  In affirming the decision of the district court, the Court ruled that despite the requirement of Social Security Ruling (SSR) 96-8p, it was joining other circuits in declining to adopt a per se rule that the functions referred to in the SSR must be addressed  explicitly.

 

Selian v. Astrue, 708 F.3d 409 (2d Cir. 2013)

 The Court held the ALJ improperly substituted her own lay opinion by rejecting the claimant’s contention that he has fibromyalgia despite a diagnosis by his treating physician. It found the ALJ misconstrued the treating physician’s treatment notes. It criticized the ALJ for relying too heavily on the findings of a consultative examiner based on a single examination. It also found the ALJ improperly substituted her own criteria for fibromyalgia. Citing the guidance from the American College of Rheumatology now made part of SSR 12-2p, the Court remanded for further proceedings, noting the required finding of tender points was not documented in the records.

The Court also held the ALJ’s RFC determination was not supported by substantial evidence.  It found the opinion of the consultative examiner upon which the ALJ relied was “remarkably vague.”  Finally, the court agreed the ALJ had erred in relying on the Grids to deny the claim. Although it upheld the ALJ’s determination that neither the claimant’s pain or depression were significant, it concluded the ALJ had not affirmatively determined whether the claimant’s reaching limitations were negligible.

 

Talavera v. Astrue, 697 F.3d 145 (2d Cir. 2012)

The Court of Appeals held that for purposes of Listing 12.05, evidence of a claimant’s cognitive limitations as an adult establishes a rebuttable presumption that those limitations arose before age 22. It also ruled that while IQ scores in the range specified by the subparts of Listing 12.05 may be prima facie evidence that an applicant suffers from “significantly subaverage general intellectual functioning,” the claimant has the burden of establishing that she also suffers from qualifying deficits in adaptive functioning. The court described deficits in adaptive functioning as the inability to cope with the challenges of ordinary everyday life.

 

Lockwood v. Comm’r of SSA914 F.3d 87 (2d Cir. 2019)

The Court of Appeals remanded because the ALJ had not met his affirmative obligation under SSR 00-4p to inquire about any possible or apparent conflicts between vocational testimony and the Dictionary of Occupational Titles (DOT). The court found the ALJ did not meet his burden simply by asking the vocational expert if her testimony was consistent, especially where the ALJ found the plaintiff could not reach overhead, but the three jobs to which the VE testified all required frequent or occasional reaching.

 


GAO Finds SSA’s Treatment of Critical Cases Inconsistent

Posted on July 31st, 2022

The Government Accountability Office (GAO) has issued a report finding fault with the Social Security Administration’s (SSA’s) implementation of its policies for the expediting critical cases at the hearing level. See GAO-22-104191. The GAO found that SSA flags appeals as critical after determining the claimant’s health or financial circumstances, such as terminal illness or dire financial need, meet SSA’s criteria as set forth in HALLEX I-2-1-40. But the cases are not always identified or expedited.

 

“Critical” cases include “TERI” cases, or those where a claimant’s illness is identified as terminal; VAPT, or Veteran 100 Percent Permanent and Total; MC/WW, or Military Casualty/ Wounded Warrior Case; CAL, or those cases identified as Compassionate Allowances per POMS DI 11005.604; DRND, or Dire Need Cases, where a claimant may be without food, education, or shelter; or Potentially Violent, where there is an indication the claimant is suicidal, homicidal, or potentially violent. Hearing offices flag critical cases for expedited processing based on evidence that the above criteria are met. Receiving a flag does not ensure that the claim will be approved, only that it should receive expedited processing.

 

The GAO found that while hearing offices consistently processed critical cases faster than non-critical cases between 2010 and 2020, the wait times varied depending on when the case was first flagged. Cases that arrived at hearing offices already flagged were processed more quickly than those first flagged at the hearing office – a median of 201 days versus 351. The GAO also found that although SSA may have initially identified a case as dire, such designations do not always trigger expedited processing unless and until it is also “flagged” by the hearing office as fitting into one of the HALLEX categories. For example, only 28.5 percent of cases with a homelessness designation also had a critical case flag and selected for expedited processing. Finally, the GAO found that even though SSA policy does not require claimants to provide documentation of dire financial need, some hearing offices required documentation before expediting claims.

 

The GAO recommended that SSA review the requirements for documentation of dire need for consistency and examine its handling of cases indicating critical need to ensure they are expedited in accordance with policy. SSA agreed with these recommendations.

 


Standard of Need by County

Posted on August 1st, 2022

Does Temporary Assistance Meet Households’ Level of Need?

 

Quick Links:

  • To calculate a basic public assistance budget, Click here.
  • To find your county’s Shelter Supplement Plan(s) and Rental Supplement Program Plan, see the  Shelter Supplements and Rental Supplements by County chart below

 

There are two types of Temporary Assistance: Family Assistance (FA) and Safety Net Assistance (SNA). FA is for families with children, subject to certain eligibility restrictions, including a 60-month time limit. SNA is for single individuals, childless couples, and households with children that have reached the five-year time limit. Applicants must meet eligibility requirements, including income and resource limits. For those found eligible, monthly Temporary Assistance benefits are less than 50% of the federal poverty limit in all New York counties. This page provides additional details about Temporary Assistance grants and rent supplement programs available in some local social services districts.

The monthly Temporary Assistance grant in New York State has two main parts: non-shelter and shelter.

 

Non-Shelter

The non-shelter portion of the public assistance grant consists of a “basic grant,” and is the same regardless of county of residence. It is based on household size:

Household Size 1 2 3 4 5 6 Each add’l Person
Monthly non-shelter grant 158 252 336 433 534 617 +85

 

Shelter

The shelter portion of the public assistance grant, called the “shelter allowance,” is set by regulation and varies by county of residence as well as household size and composition. There are two shelter allowance schedules: one for households with children and one for households without children. The shelter allowances are dramatically lower than the actual cost of decent housing in all counties across New York State. For example, here are the shelter allowances for households with children in Albany County and Cortland County:

Household Size 1 2 3 4 5 6
Albany County Shelter Allowance 214 219 309 348 386 404
Cortland County Shelter Allowance 199 234 281 317 352 384

 

The shelter allowances for every county are available in our Standard of Need Chart

Households also receive a “home energy allowance” and “supplemental home energy allowance” for all energy costs, other than heating. These allowances are the same regardless of county of residence and set by regulation. Combined, these energy allowances are as follows:

Household Size 1 2 3 4 5 6 Each Add’l Person
Monthly non-heating energy allowance 25.10 39.50 53 68.70 84.70 97.20 +12.50

 

If the household pays for heat, there’s a separate heating allowance, also set by regulation, that varies based on the heating source.

Want to learn more about the shelter and energy allowances? Click here to read Empire Justice Center’s report Turn Up the Heat: It’s Time to Raise New York’s Shelter and Fuel Allowances.

 

Standard of Need

Together, the shelter and non-shelter allowances are called the “standard of need.”

Click here for the current standard of need charts for all 58 social services districts. The last time the standard of need was increased was October 1, 2012.

Note: These standard of need charts indicate that Temporary Assistance grants are significantly lower than the federal poverty level. For instance, in Suffolk County, the total grant for a family of 3 with children with no other income is only $836 – 44% of the federal poverty level. Click here for a comparison of the standard of need for a family of three to the poverty level for each social services district.

 

Shelter Supplement Plans

Families with children and individuals who receive Temporary Assistance (FA or SNA) and who are experiencing homelessness or are at imminent risk of homelessness may be eligible for an additional grant, called a shelter supplement, to help them with their housing costs. Shelter Supplement Plans are authorized pursuant to 03-ADM-07 and 09-ADM-10.

Not all counties offer shelter supplements, and the number of available supplements in many counties is much more limited than the need. Counties set their own eligibility criteria, and those eligibility criteria vary widely. For instance, in Westchester County, families are ineligible for a shelter supplement to retain housing until they have been residents of Westchester for at least 12 months. In all counties, even with a supplement, households’ total amount of assistance is still lower than normal fair market rents. Click on the county names in the chart below to access the plans in effect as of January 1, 2022.

 

Rental Supplement Program Plans

Beginning in 2022, families with children and individuals, regardless of immigration status, who are experiencing homelessness or an imminent loss of housing may be eligible for assistance in the form of a rental supplement. Rental Supplement Program Plans are authorized pursuant to 21-LCM-24.

Eligibility is typically not limited to households receiving Temporary Assistance, but receipt of Temporary Assistance is not disqualifying. Not all counties offer rental supplements, and the eligibility criteria of each county’s plan differ.

 

Shelter Supplements and Rental Supplements by County

The chart below contains all counties in New York State outside of New York City, which has its own programs to help residents with housing costs. Click on the county names in the charts below to access the plans in effect as of May 23, 2022.

County Shelter Supplement Plan for Families w/ Children Shelter Supplement Plan for Singles & Childless Couples Rental Supplement Program Plan
Albany Albany RSP
Allegany Allegany RSP
Broome Broome RSP
Cattaraugus Cattaraugus RSP
Cayuga
Chautauqua Chautauqua RSP
Chemung
Chenango Chenango RSP
Clinton Clinton SSP
Columbia Columbia SSP
Cortland
Delaware Delaware RSP
Dutchess Dutchess SSP
Erie
Essex
Franklin
Fulton
Genesee
Greene Greene SSP
Hamilton
Herkimer
Jefferson Jefferson SSP
Lewis Lewis – SSP
Livingtson
Madison Madison SSP
Monroe Monroe SSP
Montgomery
Nassau Nassau SSP Nassau SSP
Niagara
Oneida
Onondaga Onondaga RSP
Ontario Ontario SSP
Orange Orange SSP Orange SSP Orange RSP
Orleans
Oswego Oswego RSP
Otsego Otsego SSP Otsego RSP
Putnam
Rensselaer
Rockland Rockland SSP
Saratoga
Schenectady Schenectady SSP
Schoharie Schoharie SSP
Schuyler
Seneca
St. Lawrence
Steuben Steuben RSP
Suffolk Suffolk SSP Suffolk SSP
Sullivan Sullivan SSP
Tioga
Tompkins
Ulster Ulster SSP
Warren Warren RSP
Washington Washington SSP
Wayne
Westchester Westchester SSP Westchester SSP
Wyoming
Yates Yates SSP


EMs Issued on Same Sex Marriages

Posted on July 31st, 2022

The Social Security Administration (SSA) has issued two Emergency Messages (EMs) implementing court decisions requiring payment of benefits to survivors of same-sex relationships who were unable to marry prior to the number-holder’s death due to an unconstitutional state law prohibiting same-sex marriage.

 

EM-21007 REV 2 provides instructions for handling claims, appeals, and reopening requests based on the decision in Thornton v. Commissioner of Social Security, 2:18-cv-01409-JLR (W.D. Wash.). A nation-wide class action, it prohibited SSA from denying benefits without determining whether the survivors of same-sex relationships would otherwise be eligible for widow(er)’s benefits but were prevented from marrying prior to November 25, 2020. The EM provides a series of questions, as well as examples, to help adjudicators establish whether the couple would have been married but for the unconstitutional state law.

 

EM-20046 REV 5 implements Ely v. Saul, No. CV-18-0557-TUC-BGM (D. Ariz.), which prohibits SSA from denying benefits to the surviving spouse of a same-sex ceremonial marriage who would otherwise be entitled to widow(er)’s benefits but for the nine-month marriage requirement of 42 U.S.C. § 416(c)(1). SSA must consider whether the couple would have been married sooner but for an unconstitutional state law that prohibited same-sex marriage. This EM also provides guidance for evaluating the circumstances that prevented the couple from meeting the nine-month duration requirement, including examples.

 

Lambda Legal, along with local firms, litigated the claims that resulted in these EMs, which have had a profound effect on surviving spouses who would otherwise be without these important benefits. The New York Times profiled Helen Thorton, one of the plaintiffs, who had been with her spouse for thirty years but was unable to marry her before she died in 2006, six years before Washington State made same-sex marriage legal in 2012. Ms. Thorton, who had struggling financially on just her own retirement benefits, had her income nearly double when the litigation was settled. And she received a retroactive award of $72,000 for the years that SSA had denied her application. Similarly, Anthony Gonzalez was finally able to marry his partner in New Mexico in 2013, as soon as same-sex marriage was legalized. But his spouse died six months later. In financial straits, Mr. Gonzalez applied for but was denied widower’s benefits based on the nine-month marriage requirement. His experience was cited in the Ely. He is now receiving survivor’s benefits and received a substantial retroactive payment.  

 

Lambda Legal encourages surviving same-sex partners to apply for benefits if they might be eligible. It has posted information to guide applicants.

 


Ukrainian Refugees May Be Entitled to SSI

Posted on July 31st, 2022

President Biden signed the Additional Ukrainian Supplemental Appropriations Act on May 21, 2022, which allows citizens, nationals, or residents of Ukraine paroled to the United States between February 24, 2022, and September 30, 2023, to receive Supplemental Security Income (SSI) benefits if otherwise eligible for seven years. Sponsor deeming will not apply.  These provisions comport with SSI eligibility provisions for refugees and asylees.

 

See the Immigrant Eligibility for Public Benefits in New York State chart that maps out noncitizen eligibility for a number of federal and New York State benefits, prepared and updated by the Empire Justice Center and New York Immigrant Coalition. See also the April edition of this newsletter for details on potential SSI eligibility for Non-Special Immigrant Parolees from Afghanistan under Section 2502 of the Afghanistan Supplemental Appropriations Act, 2022.

 


SSA Updates Guidance Regarding Transgender Individuals

Posted on July 31st, 2022

The Social Security Administration (SSA) has issued guidance for processing requests for Social Security numbers (SSNs) by transgender individuals. According to a press release issued on March 31, 2022, by Acting Commissioner Kilolo Kijakazi, the agency anticipates that SSA will allow people to self-select their sex on SSNs application in the fall of 2022. SSA’s systems, however, do not accommodate a sex designation other than M or F. Therefore, applications for original SSNs still must include a binary designation (M or F). The agency is exploring possible future policy and systems updates to support an “X” sex designation for the SSN card application process.

 

In the meantime, people who want to update their sex markers will need to apply for replacement SSN cards, even though SSN cards do not include sex markers. They will still need to show a current document to prove their identity, but they will no longer need to provide medical or legal documentation of their sex designation once the policy change becomes effective.  Emergency Message (EM)-22005 provides instructions for acceptance of evidentiary documents with a non-binary or unspecified sex designation, such as an X, instead of M for male and F for female in requests for Social Security numbers (SSNs). According to the EM, documents should not be rejected solely because of a non-binary or unspecified sex designation.

 

In late January 2022, SSA also issued POMS GN 00203.008 – Interviewing Transgender Individuals. In addition to providing general background on transgender identity and gender transition, the POMS reminds interviewers to “provide sensitive service to all individuals, and treat them with dignity and respect.” Interviewers should protect confidentiality of the individual; ask only questions necessary to complete the transaction; use the name and pronouns appropriate to the individual’s self-identified gender, even if the person has not changed his or her name or updated his or her records; and be aware that the individual’s gender transition is a personal matter. Questions or comments regarding a person’s medical treatment and appearance are inappropriate.

 


Advocates Demand Follow-up to SSA Equity Plan

Posted on July 31st, 2022

On June 3, 2022, a group of national advocates led by Community Legal Services in Philadelphia and Justice in Aging sent a letter to the Commissioner of Social Security, Kilolo Kijakazi, requesting that the Social Security Administration (SSA) meet with advocates to discuss the agency’s Equity Action Plan.  The letter urged the agency to prioritize two key areas: improving access to the local field offices and eliminating barriers to service for people with limited English proficiency. The letter was signed by 35 organizations, including the Empire Justice Center, Legal Services NYC, New York Legal Assistance Group, and the Urban Justice Center.

 

As detailed in the last issue of this newsletter, SSA released its agency’s Equity Action Plan on April 14, 2022.  The plan had been issued in response to an Executive Order (EO) 13985, signed on January 20, 2021, by President Biden, directing all federal agencies conduct an assessment of its programs and within one year provide a plan for advancing equity, including a plan to address barriers to enrollment in and access to benefits and services in its programs.

 

While there has been no direct response to the advocate sign-on letter, SSA held a “Stakeholder Engagement Meeting” on June 16, 2022, that was open to the public and at which the agency reviewed, in relatively broad strokes, some elements of the plan.  Many legal services organizations submitted comments in response to a request for information issued last year by the Office of Management and Budget, and continue to hope for an opportunity to have a focused dialogue on improving equity, including those identified in the sign-on letter and in the comments submitted to OMB.

 


Federal EAJA Hourly Rates – March 1996 Through March 2022

Posted on July 13th, 2022

 

Federal Equal Access to Justice (EAJA) rate charts (pdf)and spreadsheets (Microsoft Excel), have been updated for through June 2022.

Supporting Documents:

Federal EAJA Hourly Rates – March 1996 through June 2022 (Pdf)

Federal EAJA Hourly Rates – March 1996 through June 2022 (Excel)


Know Your Rights: A Guide to Help Transgender and Gender-Nonconforming NYers Navigate the NYS Human Rights Law

Posted on June 1st, 2022

Transgender and gender-nonconforming people have historically experienced discrimination, harassment and violence at far higher rates than other people because of their gender identities and gender expression.  After decades of advocacy, the legal landscape is finally starting to recognize transgender and gender-nonconforming people as a class that deserves protection under the law.

The Know Your Rights guide explains how the New York State Human Rights Law (HRL), specifically, protects transgender and gender-nonconforming people.  It describes what unlawful discrimination looks like, and what you can do if it happens to you.  This guide also contains some information about your legal rights under other state and federal laws, and gives you contact information for legal advocates and attorneys across New York State that may be able to advise you about your rights.

Know Your Rights Guide

View the one-page flyer