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Memorandum of Support

Empire Justice Memo of Support: Ensure All Parties to a Fair Hearing Have Access to All Evidence


S.98 (Gallivan)/A.1745 (Titus)
   

This bill would amend Social Services Law § 22 to allow social services districts to submit their evidentiary packages for any fair hearing solely in an electronic format.  Our proposed amendment would expressly require districts to provide a paper copy to Appellants when they request it even if the district intends to submit its evidence electronically at the fair hearing.  Importantly, it also provides that Appellants must be advised of their right to request orally or in writing a paper copy of the evidentiary packet as part of the scheduling notice.

While it is very important that the Social Services Law address the changes in technology that affect the fair hearing process, we suggest that this bill be amended to address some specific concerns.  For example, the bill does not provide a time line for the agency to respond to a request for an electronic evidence packet.  Additionally, it provides that the Appellant be advised of the right to request a paper packet with the scheduling notice.  Since Appellants receive an acknowledgement notice before they receive a scheduling notice, the notice of the right to request a paper packet should appear in the acknowledgement notice as well.  We recommend that this bill be amended to provide:
   

  • The notice of acknowledgement and the notice scheduling a fair hearing shall advise the Appellant that the Appellant or his or her representative may request a paper copy of the evidentiary packet.
  • The local district shall provide a paper or electronic copy upon request of the Appellant or his or her representative no later than 5 days after the request is received by the social services district.


The bill also addresses some of the procedural changes that are necessary for local social services districts to move to electronic and computerized file maintenance systems.  However, there are other fair hearing procedures that need to be addressed as well.  For example, Appellants and their representatives have a right to review their case file before a fair hearing (and at other times), but most social services districts do not even have a dedicated computer for persons who wish to review their own or a client’s file.  Previously, when files consisted solely  of paper documents, advocates who asked to see a client’s file to prepare for a fair hearing were handed the entire case file of paper documents to review.

Now most local districts scan their documents and when advocates try to review a file, they are often handed only selected printed documents from an electronic file that the social services worker considers relevant, or if they are lucky, they find themselves sitting at a worker’s desk, looking over the worker’s shoulder to see the file with little control over what is pulled out of the electronic file for review.  Some districts keep worker notes and e-mails relevant to the case in separate files that are never shown to the advocate.

The switch to paperless and computerized technology was done at the local level without any coordination in terms of developing standard procedures.  Due process, federal case law and the regulations of the Office of Temporary and Disability Assistance provide applicants and recipients with the right to see their case files, but there is no guidance from the state on how that is to be done now that the files are electronic.  Appellants should be able to review their file at a computer station or where appropriate, be provided a disc or other portable data storage device containing their complete relevant case file.  As a result this bill should also be amended to provide that:

  • All social services districts have a dedicated computer(s) for Appellants and their representatives to review their case files.
  • OTDA develop final regulations and procedures for electronic file review at the local district level within six months of the effective date of this legislation.


In conclusion, we recommend that Social Services Law §22 be amended as provided in this bill with the amendments suggested in this memo. We agree that the rules regarding access to files in this digital age need to be revised to reflect the modern world, but New York must also ensure that Appellants in the fair hearing process are not deprived of due process in our desire to utilize technology.

This memo was prepared by:


Susan C. Antos

Empire Justice Center
119 Washington Avenue
Albany, NY  12210 


(518) 462-6831
(518) 935-2852
santos@empirejustice.org

02/11/13