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WHAT YOU NEED TO KNOW ABOUT SANCTIONS

(Article published in HWW December 2010)


by Susan Welber, Staff Attorney, Legal Aid Society

Almost anyone who has an open welfare case in New York City can be subject to a “sanction,” a loss of benefits for failing to follow rules. In fact, close to 25 percent of welfare recipients are either sanctioned or in the process of being sanctioned at any given time. If you think you followed the rules and were unfairly sanctioned, you are not alone. Many people challenge sanctions in fair hearings and win. This article looks at some of the reasons why people get sanctioned, how to avoid getting sanctioned and how to challenge a sanction if you do face one. Note: Avoiding and challenging sanctions is especially important for families who are homeless because to be eligible for an Advantage Program rent subsidy you cannot have a sanction on your case currently and your case has to have been free of sanction for the past 30 days.

PART I – Types of Sanctions and How They Affect Your Case

Sanctions for failing to comply with work requirements are the most common kind of sanction.

How much do you get sanctioned?

If you live with minor children and you are sanctioned for failing to comply with a work requirement, you lose your share of your family’s benefits only. That means if there are three people on your budget, you and two children and you receive $300 a month in benefits, your benefits would be reduced to $200 during the period of sanction. (You lose your third – $100 – of the budget). If you are living alone or with other adults, but no minor children, your case is closed completely during the period for which you are sanctioned. (You may still be eligible for Medicaid and Food Stamps even though your cash is sanctioned; however, you must respond to any new mailings you get to keep the Medicaid and Food Stamps on.)

For how long do you get sanctioned?

How long you get sanctioned for violating work requirements again depends on your family composition: do you live with minor children or alone/with other adults? The length of sanction also depends on how many times you have been sanctioned in the past. The chart below summarizes the length of sanctions based on these two factors:















Whether you have minor children in the household or not, the sanction will last until you agree to comply. In other words, if you are sanctioned for violating a rule, you have to agree to follow that rule before the sanction will get lifted. If you have children in the household and it is your first time being sanctioned, the sanction will only last until you go to HRA and indicate that you are willing to comply. This means if you go into the center right away, you may only be sanctioned for a few days. If you have had at least two sanctions in the past, you have to wait much, much longer: a minimum of six months and until you are willing to comply. This means, once six months have passed your sanction does not automatically get lifted. You still must tell HRA that you are “willing to comply.” Until you do, the sanction will remain on your case and you will continue to lose benefits. If you are single, your case will be closed and you must apply 45 days before the sanction ends to get your case opened and to lift the sanction. It is not automatic.

Office of Child Support Enforcement (OCSE) Sanctions

Less common are OCSE sanctions. These sanctions are imposed when you are required to provide HRA with information necessary to seek child support from your child’s absent parent. If you fail to do this, and you do not have what HRA views as a legitimate excuse, such as fear of domestic violence, you will lose 25 percent of your budget until you comply with the child support rules. If you have a child support sanction you can get it lifted by going back to your worker and asking for a referral to the Office of Child Support Enforcement (OCSE). Upon being found exempt from complying because of domestic violence or by going to the appointment and complying, your sanction will be lifted. The process takes about a month.

PART II – Preventing Sanctions

Here are some common reasons people get sanctioned and some simple steps you can take to help prevent sanctions:

CAUSE #1 – MISSED APPOINTMENT FOR GOOD REASON

You miss a work requirement related appointment due to your illness or that of a family member, another welfare related appointment, an emergency. When you miss a work related appointment you need to be able to show that you had “good cause” for missing it. The legal definition of “good cause” is “circumstances beyond the individual’s control...,” including your illness, illness of a family member, a household emergency, lack of child care for children between ages 6 and 13.

So:

Call the center before you miss the appointment and ask to reschedule. If you know in advance you have a doctor’s appointment at the time of your welfare appointment, call the number on the welfare appointment notice and tell them you need to reschedule and why. Write down the number you called, the name of the person you spoke with, and time and date and keep your notes. Having details like this makes HRA (and a fair hearing judge) more likely to believe you if you have no other proof.

Try to get proof for the reason you missed the appointment. If you went to the doctor for yourself or your child on the day of the appointment you missed, ask the doctor for proof that you were there. If you were sick but you didn’t need to go to the doctor, ask your doctor to write a note describing your condition and how you have been instructed to treat it yourself. If you didn’t go to the doctor, it helps to have a witness to your illness who can testify in detail about how sick you were if necessary. If you had another HRA-related appointment, keep a copy of the notice. If you have some other emergency, keep proof of that.

CAUSE # 2 – MAILING PROBLEMS

You miss a work requirement related appointment because you didn’t get the notice/HRA sent it to the wrong address. Sometimes you won’t even know you missed an appointment because you never even received notice of the appointment. You just know your benefits have been reduced and maybe an HRA worker has told you that you are sanctioned. This is very common, especially if you are living in a homeless shelter or your address has recently changed.

To prevent a sanction for reasons related to not receiving the notice:

Let HRA know where you are living and what address you want your mail sent to. You may think HRA knows your address because you are living in a shelter for which HRA pays the rent, or because HRA is paying rent on the apartment you just moved into. You are right that HRA should know your address, but to protect yourself and to be sure you follow the rules you must tell HRA you moved and what your address is. The best way to do this is to go to the center with a piece of paper that has your new address and says on it that you want it changed. Bring an extra copy of this piece of paper and have HRA date-stamp it or write on it to indicate when you submitted it and that they took it. If HRA fails to change your address, you have proof that you tried to change it and that it’s not your fault.

If the problem is that HRA has your correct address, but you have mailing problems that prevent you from always getting the mail, try to fix the mailing problem. In some buildings and shelters, the mailboxes are broken, and people take each other’s mail. In other residences, there are several people who have similar names, and you all get each other’s mail. If you have a problem like this, you need proof that you tried to fix it. Write a letter to the shelter management or your landlord complaining and keep a copy. If your neighbor gets your mail and has to give it to you herself, have her handwrite a note about how often this happens. If your mailbox is broken, take a photo of it.

Complain to the United States Postal Service (USPS). Even if you are trying to fix your mailing problem yourself, you should complain to the USPS just in case. There are two easy ways to complain: (1) go to your local USPS in person and fill out a complaint form or ask someone to help you; make sure you are given a receipt showing you filed a complaint; or (2) call USPS toll free at 1-800-275-8777, speak to a customer service representative, make a complaint and get a complaint receipt number for tracking
purposes.

CAUSE #3 – DISABILITY

You miss a work related appointment (or any appointment) because you cannot travel to the welfare center or other location HRA wants you to go to because of a physical or mental impairment that makes traveling difficult for you. Many people have trouble making it to appointments because of a disability, often a physical or mental impairment that makes getting to the appointment location difficult. For example, someone with back problems may have trouble getting in and out of the subway needed to travel to the center; a person with severe depression may have trouble getting out of the house at all; a person with anxiety may only be able to travel during non-rush hour times. HRA is often required by law to provide something called a “reasonable accommodation” to disabled clients. This is a legal term that basically means that HRA must change the requirements if needed to help a person with a disability get equal access to services. Examples of reasonable accommodations include the ability to mail or fax documents instead of bringing them in to the welfare center; appointments scheduled at times of day that don’t require the client to travel in rush hour traffic; assistance reading documents; home visits, and much more.

To prevent a sanction for reasons related to disabilities, you should do the following:

Make sure HRA is aware of your disability, how it effects you, and the type of assistance you need. You can do this in a variety of ways. You can tell HRA when you file your application. You can bring in or fax a doctor’s note to your welfare center describing your condition and the types of help you need. You can ask to be referred to HRA’s doctors (“WeCARE”), and they will evaluate you and document your conditions in HRA’s records. If you go to WeCARE, be sure to tell the doctors and case workers there the specific problems you have that you need help with.


When you can’t attend an appointment because of a disability, make sure you ask that the appointment be rescheduled and document “good cause” for missing the appointment. (See CAUSE #1 – Missed Appointment for Good Reason, above.)

If your request for assistance is denied, you can complain to HRA that you were denied a “reasonable accommodation.” To do this, you should write a letter and mail or fax it to HRA’s ADA Compliance Officer. Her name is Lauren Friedland, and her address, phone and fax are below:

Lauren Friedland, Esq.

ADA Compliance Officer

Office of Legal Affairs

180 Water Street, 17th Floor

New York, NY 10038

Fax: (212) 331-5023

Tel: (212) 331-5149

CAUSE #4 – SYSTEM ERROR

You did go to the appointment/follow the rule, but HRA’s computer says you failed to report “FTR.” This happens all the time. You did go to the appointment and met with the caseworker, yet HRA still says you did not. This is hard to comprehend, but HRA does a lot by computer, and computers often get things wrong without a lot of oversight by workers.

To prevent being sanctioned for missing an appointment you went to follow these easy rules:

Whenever you attend an appointment related to HRA, keep a receipt that shows you were there. This may be the pass that they give you when you see the receptionist, a copy of the appointment notice that you have a worker initial or put the date on to prove that you were there, and anything else you can imagine.

Keep your own records on appointments. Carry a calendar and mark all of your HRA-related appointments in the calendar. Check them off after you go and make a note of the name of the person you spoke with. If you ever have to prove that you went to the appointment, your own records can help.

PART III – Prevent the Sanction Through Conciliation

Even if you take the preventative steps outlined above, you may still be threatened with a sanction if HRA thinks you failed to go to an appointment or failed to follow some other work requirement rule. HRA is supposed to send you an appointment notice for “conciliation.” Conciliation is a type of appointment at the welfare center where you meet with a worker who can decide that you had “good cause” for not complying with the work rule. As explained above, if HRA thinks you have “good cause,” you wont be sanctioned. The notice of conciliation should tell you what rule HRA thinks you failed to comply with. You should bring the proof you have that is relevant, including doctor’s notes, personal calendars, complaints to the post office, anything that helps explain why you did not do what HRA says you were supposed to do. If you are successful at the conciliation, a worker will probably tell you.


Notice of Intent – If you are not successful at conciliation the next step is that HRA will send you a “notice of intent” – one of those long HRA notices that tells you that your benefits are going to be reduced. If you get a notice of intent, even if you think you resolved your issue at conciliation, you need to take some steps to prevent the sanction from going into effect. Two key pieces of information you need from the notice of intent are its “effective date,” and the notice number. The “effective date” is the date that the notice says the sanction will go into effect or your benefits will be reduced. Make a note of the “effective date.” The notice number is in a box at the top of the notice and starts with “NO.” This is the “id number” for the notice and you should use it whenever you request a fair hearing on a particular notice.

PART IV – How to Request a Fair Hearing with Aid to Continue

A fair hearing is an impartial hearing held by the State Office of Temporary and Disability Assistance where an administrative law judge (ALJ) makes a decision about whether an action HRA took on your case, including a sanction, is correct. A fair hearing is often more fair than a conciliation because it’s the state making a decision on your case, not someone from HRA. So even if you were not successful at conciliation it is still worth challenging a sanction in a fair hearing.

There are four main ways to request a fair hearing:

(a) in person, at 14 Boerum Place, in Brooklyn

(b) on the phone, 1-800-342-3334 (1-800-205-0110, for emergencies only)

(c) online, by visiting http://otda.ny.gov/oahforms/erequestform.aspx

(d) by mail or fax – The address you can mail requests to is:

New York State Office of Temporary and
Disability Assistance

Office of Administrative Hearings

P.O. Box 1930

Albany, NY 12201-1930


You can also fax your request to 518-473-6735.


What is the deadline for requesting a fair hearing? The deadline is 60 days from the date of the notice of intent for cash sanctions (90 days for Food Stamps), but in most cases you want to request your hearing as soon as possible. Why? Because if you request your hearing before the “effective date” of the notice of intent, your benefits will not change. The sanction will not go into effect. This is because of something called “Aid to Continue” – When you request your hearing before the effective date of the notice of intent, you get “aid to continue,” which means that HRA is not allowed to reduce/sanction your benefits until you have a fair hearing, and only then, if you lose your fair hearing. So if the notice of intent is dated November 20, and the sanction is supposed to go into effect on December 1, you need to request a fair hearing before December 1. Please note, if you lose your fair hearing, HRA may try to recoup from you the benefits you received due to aid to continue.


What if you never received the notice? You may still be eligible for aid to continue, especially if you have mailing problems and the agency sent the notice to the wrong address.

For help with the Fair Hearing

Visit Project FAIR’s Help Desk at 14 Boerum Place – 14 Boerum Place (the State fair hearing office), every weekday from 12-3 p.m. No appointment needed. Walk-ins only.

Visit Project FAIR’s website at www.projectfair.org The website posts a lot of materials that can help you understand more about the fair hearing and how to prepare.

Get an appointment at your local Legal Aid or Legal Services office – The notice of intent lists the name of your local legal services provider.


For a full discussion of fair hearings and how to prepare for them, see the article by Susan Bahn in the June issue of HOW…WHEN…WHERE by visiting the website www.informationforfamilies.org.