STATE OF NEW YORK REQUEST: December 24, 2018

OFFICE OF TEMPORARY AND DISABILITY ASSISTANCE _______________

AGENCY: Monroe
FH #: 7882809H

______________________________________________________
:
In the Matter of the Appeal of
: DECISION
________________________ AFTER
: FAIR
HEARING
from a determination by the Monroe County :
Department of Social Services
______________________________________________________:

JURISDICTION

Pursuant to Section 22 of the New York State Social Services Law (hereinafter Social
Services Law) and Part 358 of Title 18 NYCRR, (hereinafter Regulations), a fair hearing was
held on February 11, 2019, in Monroe County, before an Administrative Law Judge. The
following persons appeared at the hearing:

For the Appellant

____________________________________

For the Social Services Agency

Wendy Lofton-Haley, Senior Ex., Fair Hearing Representative

ISSUES

Was the Agency's determination to reduce the Appellant’s Public Assistance benefits on
the grounds that the Appellant refused to comply with employment requirements by failing to
appear for a work activity appointment on October 9, 2018 correct?

Was the Agency's determination to reduce the Appellant’s SNAP benefits on the grounds
that the Appellant refused to comply with employment requirements by failing to appear for a
work activity appointment on October 9, 2018 correct?
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FINDINGS OF FACT

An opportunity to be heard having been afforded to all interested parties and evidence
having been taken and due deliberation having been had, it is hereby found that:

1. The Appellant has been in receipt of Public Assistance and SNAP benefits for a
household of four persons including herself and her three minor children (ages 12, 6 and 1).

2. The Appellant is the parent or caretaker of a dependent child.

3. By a letter dated September 16, 2018, the Agency advised the Appellant of a
scheduled appointment on October 9, 2018 at 9:00 AM to enroll in a Work Experience Activity
at Rochester Works. The letter was mailed to the Appellant at the address in the Agency’s
records.

4. The Appellant did not appear at the October 9, 2018 appointment.

5. On December 19, 2018, the Agency notified the Appellant of its intent to reduce
the Appellant's Public Assistance grant until the Appellant is willing to comply with work
experience requirements and to reduce the household's SNAP benefits for two months and
thereafter until the Appellant complies on the grounds that the Appellant refused to cooperate
with work experience requirements by failing to appear for enrollment in a work activity on
October 9, 2018.

6. Before sending the Notice of Intent, the Agency sent the Appellant a notice of
conciliation advising this individual of the opportunity to take part in conciliation regarding the
Agency's claim.
7. The Appellant responded to the notice of conciliation and had a conciliation with
the Agency to give reasons for the failure to comply. After evaluating the Appellant's reasons,
the Agency issued the Notice of Intent.

8. On December 24, 2018, the Appellant requested this fair hearing.

APPLICABLE LAW

Section 131.5 of the Social Services Law provides that no Public Assistance shall be
given to an applicant for or recipient of Public Assistance who has failed to comply with the
requirements of the Social Services Law, or has refused to accept employment in which he or she
is able to engage. Section 131(7)(b) of the Social Services Law provides that where a person is
judged employable or potentially employable, a social services official may require such person
to receive suitable medical care and/or undergo suitable instruction and/or work training. A
person who refuses to accept such care or undergo such instruction or training is ineligible for
Public Assistance and care.
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Pursuant to Section 336-c of the Social Services Law and 18 NYCRR 385.9, work
experience programs meeting State and federal requirements may be established by social
services districts. Work experience programs may include the performance of work for a federal
office or agency, county, city, village or town or for the State or in the operation of or in an
activity of a nonprofit agency or institution.

Work experience opportunities are limited to projects which serve a useful public purpose
in fields such as health, social services, environmental protection, education, urban and rural
development and redevelopment, welfare, recreation, operation of public facilities, public safety,
and child day care.

Social services officials are required by Section 341 of the Social Services Law and 18
NYCRR 385.11 to establish a conciliation procedure for applicants and recipients of Public
Assistance.

A social services official must issue a notice to each applicant or recipient who refuses or
fails to comply with public assistance employment program requirements of Article 9-B of the
Social Services Law (Sections 330 - 342). Such notice must advise the individual of his or her
refusal or failure to comply, that the individual has the right to provide reasons for such failure or
refusal to participate and that he or she has a specified number of days to request conciliation.
Applicants and recipients for Safety Net Assistance have seven days to request conciliation and
applicants and recipients for Family Assistance have 10 days to request conciliation.

If the individual requests conciliation within the specified number of days, conciliation
shall not last longer than 14 days from the date of the conciliation request in the case of an
applicant or recipient of Safety Net, and 30 days from the date of the conciliation notice in the
case of a Family Assistance applicant/recipient and it will be the individual's responsibility to
provide reasons for such refusal or failure to comply.

If the district determines that the individual's refusal or failure to comply was willful and
without good cause, then the social services official must issue a 10 day notice of intent to reduce
or discontinue assistance.

If the participant does not respond to the conciliation letter issued by the social services
official within the specified number of days then the social services official must issue a notice to
deny Public Assistance or a ten day notice of intent to discontinue or reduce Public Assistance.

Social services officials must establish a conciliation procedure for the resolution of
grievances initiated by individuals assigned to work activities to give individuals an opportunity
to dispute an assignment to a work activity. No sanction related to the participant's failure to
comply may be imposed during this conciliation period. If the individual's grievance is not
resolved, the individual shall be informed of the right to a fair hearing. Individuals shall be
required to participate in work activities as assigned during the fair hearing process.
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General Information System Message GIS 05 TA/DC032, issued September 14, 2005,
provides in part that a sanction is only imposed for noncompliance with employment
requirements when the refusal or failure to comply was both willful and without good cause.
The determination of when such conduct is willful and without good cause may include, but is
not necessarily limited to, identifying a pattern of the recipient’s failure to take reasonable steps
to address issues within the recipient’s control that may prevent the recipient from complying
with employment requirements. Such a determination must be made on a case-by-case basis,
and the steps that the recipient took to address issues within the recipient’s control which
prevented him or her from complying with the employment requirement need to be explored in
each instance of non-compliance. On the other hand, a recipient who fails to report to an
employment assignment and does not respond to the conciliation notice within the required time
frame or otherwise provide documentation to establish good cause may be considered to have
willfully and without good cause failed to comply with the assignment in the first instance. The
information used to make the determination of whether a recipient’s failure to comply is willful
and without good cause must be documented in the recipient’s record.

Social services officials are responsible for determining good cause. The official must
consider the facts and circumstances, including information submitted by the individual subject
to such requirements. Good cause includes circumstances beyond the individual's control, such
as but not limited to, illness of the member, illness if another household member requiring the
presence of the member, a household emergency, or the lack of adequate child care for children
who have reached the age of six but are under age 13. The applicant or recipient is responsible
for notifying the Agency of the reasons for failing to comply with an eligibility requirement and
for furnishing evidence to support any claim of good cause. The Agency must review the
information and evidence provided and make a determination of whether the information and
evidence supports a finding of good cause. 18 NYCRR 385.12(c).

The parent or care taker relative of a child under thirteen years of age shall not be subject
to the ineligibility provisions of Section 342 of the Social Services Law if the individual can
demonstrate, in accordance with the regulations of the Office of Children and Family Services,
that lack of available child care prevents such individual from complying with the work
requirements. The parent or caretaker relative shall be responsible for locating the child care
needed to meet the work requirements; provided, however, that the relevant social services
district shall provide a parent or caretaker relative who demonstrates an inability to obtain
needed child care with a choice of two providers, at least one of which will be a regulated
provider.

Section 342 of the Social Services Law and 18 NYCRR 385.12 provides that in the case
of an applicant for or recipient of Public Assistance who is a parent or caretaker of a dependent
child the Public Assistance benefits otherwise available to the household of which such
individual is a member shall be reduced pro-rata:

(a) For the first instance of failure to comply without good cause until the individual
is willing to comply;
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(b) For the second instance of failure to comply without good cause, for a period of
three months and thereafter until the individual is willing to comply;

(c) For the third and all subsequent instances of failure to comply without good
cause, for a period of six months and thereafter until the individual is willing to
comply.

Willing to comply means that an individual, as required by a district, reports to an

assigned work activity site or other location as assigned by the district on time and prepared to
engage in the assigned activity.

Pursuant to 7 U.S.C. 2015 (Section 6 of the federal Food and Nutrition Act of 2008), as
amended by the Personal Responsibility and Work Opportunity Reconciliation Act of 1996
(PRWORA), if a disqualification is imposed on a member of a household because of that
member's failure to perform an action required under a federal, State or local law relating to a
means-tested public assistance program, the Agency may also impose a disqualification on the
household member under the SNAP Program.

Department regulations at 18 NYCRR 385.11(c) provide that:

(1) the social services official shall issue a conciliation notice to a SNAP recipient
who has failed or refused to comply with SNAP work requirements.

(2) Such notice shall:

(i) indicate that a failure or refusal to participate has occurred;

(ii) indicate that the individual has a right to provide reasons for such failure
or refusal to participate;

(iii) indicate that the individual has a right to avoid a reduction or

discontinuance in SNAP benefits by timely demonstrating compliance
with SNAP work requirements as determined by the social services
district; and

(iv) indicate that the individual shall have 10 calendar days from the date of
the notice to request a conciliation and/or an opportunity to timely
demonstrate compliance with SNAP work requirements.

(3) If the individual does not contact the social services official within the time period
set forth in paragraph (2) of this subdivision and provide a good cause reason for
his or her failure or refusal to comply with SNAP work requirements, document
an exemption from work requirements, or timely demonstrate compliance with
SNAP work requirements, the social services official shall issue a 10-day notice
of intent to discontinue or reduce SNAP benefits.
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(4) If the individual does contact the social services official within the time period set
forth in paragraph (2) of this subdivision, the individual shall be responsible for
providing the social services official with reasons for his or her failure or refusal
to comply, and may be required to produce documentation establishing such
reasons as determined necessary by the social services district.

(i) If the social services official determines that the individual's failure or
refusal to comply was with good cause, the conciliation procedure shall
terminate.

(ii) If the social services official determines that the individual's failure or
refusal to comply was without good cause, the social services official shall
issue a 10-day notice of intent to discontinue or reduce SNAP benefits
pursuant to paragraph (3) of this subdivision, unless the individual
demonstrates compliance pursuant to paragraph (5) of this subdivision.

(5) Regardless of whether the individual provides reason for his or her failure to
participate in SNAP work requirements, should the individual demonstrate
compliance with SNAP work requirements as assigned and in the timeframe
established by the social services district, then the conciliation procedure shall
terminate.

(6) The conciliation period shall last no longer than 30 calendar days from the date of
the conciliation notice, unless the social services official determines that the
conciliation period should last longer.

The regulations at 385.3 provide the following:

(a) Exemptions from food stamp work registration.

(1) Each individual, including migrant/seasonal laborers, is required to register for employment
at the time of application for food stamp benefits unless the individual is:

(i) younger than 16 years of age, or is 60 years of age or older;

(ii) physically or mentally unfit for employment;

(iii) subject to and complying with any work requirement under title IV of the Social Security
Act (SSA); provided, however, that an individual participating in a work experience program in
accordance with the provisions of title IV-A of the SSA and of this Part may also be required to
participate in work experience for the number of hours represented by the dollar value of the
individual's food stamp benefit divided by the Federal or State minimum wage, whichever is
higher;
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(iv) a parent or household member who is responsible for the physical care of a dependent child
under the age of six or of an incapacitated person; provided, however, that an individual
participating in a work experience program in accordance with the provisions of title IV-A of the
SSA and of this Part may also be required to participate in work experience for the number of
hours represented by the dollar value of the individual's food stamp benefit divided by the
Federal or State minimum wage, whichever is higher;

(v) a recipient of unemployment compensation. An applicant for unemployment compensation is

exempt if he/she was required to register for work as part of the unemployment compensation
application process;

(vi) a regular participant in a drug or alcohol treatment and rehabilitation program; for the
purposes of this subparagraph, a regular participant shall be defined as an individual who is
determined unable to work and participating in treatment in accordance with the requirements of
section 351.2(i) of this Title or otherwise engaged in drug or alcohol treatment to an extent that
assignment to work activities is impractical;

(vii) employed or self-employed and working a minimum of 30 hours weekly or receiving

weekly earnings at least equal to the Federal minimum wage multiplied by 30 hours. This
provision includes migrant and seasonal farm workers who are under contract or similar
agreement with an employer or crew chief to begin employment within 30 days;

(viii) a student enrolled at least half-time in any recognized school, training program or
institution of higher education. A student enrolled at least half-time in an institution of higher
education must have met the student eligibility criteria in section 387.1 of this Title. A student
remains exempt during normal periods of attendance, vacation, and recess, unless there is a break
in the student's enrollment status due to graduation, suspension, expulsion, or intent not to return
to school;

(ix) an applicant for SSI and food stamps under the joint processing provisions until such time as
the individual is:

(a) determined to be eligible for SSI and, thereby, exempt from work registration; or

(b) determined to be ineligible for SSI and a subsequent redetermination of his/her work
registration status is made; or

(x) a person age 16 or 17 who is attending school or an employment training program on at least
a half-time basis.

(2)
(i) An individual who loses exempt status due to any change in circumstance subject to the
reporting requirements of section 387.17(e) of this Title must be registered for work when the
change is reported.
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(ii) An individual who loses exempt status due to a change in circumstances not subject to the
reporting requirements of section 387.17(e) of this Title must register for work at his/her
household's next recertification.

(3) Work registrants must be provided with a written statement of their rights and responsibilities
and of the consequences of failure to comply. This statement must be provided at each
registration and at recertification.

(4) Each individual or household has a right to a fair hearing to appeal a denial, reduction or
termination of benefits due to the social services official's determination of nonexempt status, or
determination of failure to comply with work registration or with work requirements specified in
this Part.

(b) Strikers who are eligible for food stamps under the criteria set forth in section 387.16 of this
Title are subject to the employment requirements of this Part unless they are exempt under
subdivision (a) of this section at the time of application. 18 NYCRR 385.3.

If the Agency determines that an individual has refused or failed without good cause to
comply with SNAP employment requirements, that individual is ineligible to receive SNAP
benefits for two months, and thereafter until the individual complies, for the first instance; four
months, and thereafter until the individual complies, for the second instance, and six months, and
thereafter until the individual complies, for the third and subsequent instance of a failure to
comply. For the period prior to August 19, 2002, a subsequent failure had to be within three
years of the previous such failure in order to increase the duration of the sanction. 7 CFR
273.7(g); 18 NYCRR 385.12(e).

The regulations at 18 NYCRR 385.9 (c) provides the following:

(1) A social services official shall make available vocational educational training and educational
activities in accordance with an assessment conducted and the employability plan prepared
pursuant to the requirements of sections 385.6 and 385.7 of this Part. Such activities may
include, but need not be limited to:

(i) vocational educational training, which may include but not be limited to organized
educational programs offering a sequence of courses which are directly related to the preparation
of individuals for current or emerging occupations requiring other than a baccalaureate or
advanced degree. Such programs may include competency-based applied learning which
contributes to an individual's academic knowledge, higher-order reasoning, and problem-solving
skills, work attitudes, general employability skills, and the occupational- specific skills necessary
for economic independence. Such term may also include applied technology education;

(a) when a social services district contracts with a proprietary vocational school to provide
vocational educational training to individuals assigned in accordance with the provisions of this
section, not more than 25 percent of the duration of such program can be devoted to preparation
for a high school equivalency or to English as a second language;
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(b) instructors employed by proprietary schools to prepare individuals for a high school
equivalency certificate shall meet experience requirements established in regulation by the
Commissioner of Education;

(c) individuals in need of basic literacy programs shall be referred to basic and remedial
education rather than to vocational proprietary schools;

(ii) high school education or education designed to prepare a participant for a high school
equivalency certificate;

(iii) basic and remedial education;

(iv) education in English proficiency;

(v) no more than a total of two years of post secondary education (or the part-time equivalent, if
full-time study would constitute an undue hardship);

(a) such post-secondary education must be necessary to the attainment of the participant's
employment goal, as set forth in the employability plan required pursuant to sections 385.6 and
385.7 of this Part. Such goal must relate directly to obtaining useful employment in a recognized
occupation;

(b) enrollment may be in the following types of educational institutions:

(1) community colleges and two-year colleges;

(2) four-year colleges; provided, however, that the course of instruction for which an individual
is enrolled is limited to a two-year degree granting program;
(3) licensed trade schools; or
(4) registered business schools.

The regulations at 18 NYCRR 385.6 provide the following:

(a) Assessments.
(1) The social services official shall ensure that an employability assessment is provided for each
public assistance recipient who is a member of a household with dependent children and is:
(i) 18 years or older; or
(ii) 16 or 17 years of age and not attending secondary school and has not completed high school
or an equivalency program.

(2) Such assessment shall include, but not be limited to, a review of the individual’s:
(i) education level, including literacy and English language proficiency;
(ii) basic skills proficiency;
(iii) child care and other supportive services needs;
(iv) skills and prior work experience;
(v) prior participation in education and training;
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(vi) training and vocational interests; and

(vii) family circumstances, including the special needs of a child.

(5) Any change to the plan shall be discussed with the recipient and documented in writing.

DISCUSSION

The Appellant has been in receipt of Public Assistance and SNAP benefits for a
household of four persons including herself and three minor children (ages 12, 6 and 1).

By a letter dated September 16, 2018, the Agency advised the Appellant of a scheduled
appointment on October 9, 2018 at 9:00 AM to enroll in a Work Experience Activity at
Rochester Works. The Appellant did not appear at the October 9, 2018 appointment.

By notice dated December 19, 2018, the Agency notified the Appellant of its intent to
reduce the Appellant's Public Assistance benefits until the Appellant is willing to comply with
work experience requirements, and to reduce the household's SNAP benefits for two months and
thereafter until the Appellant complies, on the grounds that the Appellant refused to cooperate
with work experience requirements by failing to appear for enrollment in a work activity on
October 9, 2018. This hearing followed.

On November 15, 2018 the Appellant had conciliation with _____ ____. The Agency’s
notes indicate that the Appellant stated that she is now working 30 hours weekly and attending
_________ _________ _________ The worker’s notes state that “Employment is on the EDP
but only 20 hours. Pay stubs provided are from August and do not reflect 30 hours.” The worker
sent a request to the Appellant’s employer for information regarding her “wage history.” On
December 12, 2018, the worker’s notes indicate the Appellant “did not provide verification of
increased hours of employment. No good cause established for not attending WEP appointment
on October 9, 2018. No SNAP job search returned. Imposed WE1 sanction” for both Public
Assistance and SNAP.

The Agency’s notes further provide that the Appellant responded to conciliation on
November 15, 2018 and informed the Agency that she was now working 30 hours per week and
attending community college full time. The Agency’s records indicate that the Appellant
dropped off her full-time school schedule at the Agency and Ms. ______new about the fact that
she was enrolled in community college. The Appellant also provided paystubs but because the
documentation provided did not show 30 hours of work, the Agency found that she did not have
good cause for not attending the October 9, 2018 appointment. Further, at the hearing, the
Agency’s representative testified that although the Appellant is enrolled in community college,
she never requested that her attendance be made a part of her employment plan, therefore, the
Appellant’s attendance is not approved.

At the hearing the Appellant testified that she knew about the October 9, 2018 WEP
appointment. She testified that she is enrolled in college full time and she has three kids and she
let her worker Ms. ______now that she was going to school. The Appellant stated that she is
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questioning the Employment Plan because now she is trying to go to school while she has to care
for three kids. The record shows that the day after the October 9, 2018 appointment, the
Appellant called the Agency to “see why she has to do WEP when she is doing so much other
stuff.” The Appellant was given her employment worker’s name and number (Ms. ____) to
proceed with the conciliation process. The Appellant’s testimony that she is attending
community college full time and working was not disputed by the Agency.

The regulations and the General Information System Message (GIS) above provide that a
sanction is only imposed for noncompliance with employment requirements when the refusal or
failure to comply was both willful and without good cause. The GIS further provide that the
determination of when such conduct is willful and without good cause may include, but is not
necessarily limited to, identifying a pattern of the recipient’s failure to take reasonable steps to
address issues within the recipient’s control that may prevent the recipient from complying with
employment requirements. Such a determination must be made on a case-by-case basis, and the
steps that the recipient took to address issues within the recipient’s control which prevented him
or her from complying with the employment requirement need to be explored in each instance of
non-compliance.

In this case, the Agency has failed to establish that the Appellant’s failure to keep the
October 9, 2018 appointment was both willful and without good cause. The record indicates that
the Appellant notified the Agency of her attendance at college and her employment on October
10, 2018. Further, the Appellant responded to conciliation and provided proof that she was
attending college and working. The Agency failed to establish that it considered and explored
the steps the Appellant took to address the issues which prevented her compliance.

The regulations above further provide that the Agency shall make available vocational
educational training and educational activities in accordance with an assessment conducted and
the employability plan prepared. The regulations also provide that any change to the
employability plan shall be discussed with the recipient and documented. In this case, the
Agency failed to establish its adherence to these regulations, since the Appellant’s request to
attend college and work was not made a part of her employability plan. As a result, the
Agency’s determination to reduce the Appellant’s Public Assistance and SNAP benefits cannot
be sustained.

Further, concerning the Agency’s determination to reduce the Appellant’s SNAP benefits
for failure to keep the October 9, 2018 appointment, the regulations above provide that a parent
who is responsible for the physical care of a dependent child under the age of six is exempt from
participating in the SNAP work rules. The evidence in this case establishes that the Appellant is
responsible for the physical care of a child under the age of six (6). Therefore, the Appellant is
exempt from participating in the SNAP work rules.
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DECISION AND ORDER

The Agency's determination on December 19, 2018 to reduce the Appellant's Public
Assistance benefits on the grounds that the Appellant failed to comply with the employment
requirements was not correct and is reversed.

1. The Agency is directed to continue the Appellant's grant of Public Assistance and
to restore any assistance withheld as a result of the Agency's action retroactive to the date of
reduction.

The Agency's determination on December 19, 2018 to reduce the Appellant's SNAP
benefits on the grounds that the Appellant failed to comply with the employment requirements
was not correct and is reversed.

1. The Agency is directed to continue the Appellant's SNAP benefits and to restore
benefits withheld as a result of the Agency's action retroactive to the date of reduction.

Should the Agency need additional information from the Appellant in order to comply
with the above directives, it is directed to notify the Appellant promptly in writing as to what
documentation is needed. If such information is requested, the Appellant must provide it to the
Agency promptly to facilitate such compliance.

As required by 18 NYCRR 358-6.4, the Agency must comply immediately with the
directives set forth above.

DATED: Albany, New York

05/17/2019

NEW YORK STATE OFFICE OF

TEMPORARY AND DISABILITY ASSISTANCE

By

Commissioner's Designee