Commission for the Blind FAQ

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Frequently Asked Questions Regarding Reviews, Appeals, and Administrative Hearings for the New York State Commission for the Blind Pursuant to SSL § 361.48 and 18 NYCRR § 729.22 Business Enterprise Program

Acronyms and Abbreviations

• ALJ - Administrative Law Judge
• BEP - Business Enterprise Program
• BSH - Bureau of Special Hearings
• NYSCB - New York State Commission for the Blind
• OCFS - Office of Children and Family Services
• OTDA - Office of Temporary and Disability Assistance

Questions

What is my right to appeal an NYSCB counselor action or agency determination?

It is the policy of NYSCB to provide applicants, eligible individuals and recipients of vocational rehabilitation services, independent living services and adaptive living program services with the opportunity to appeal counselor decisions and Agency determinations. In addition, participants in the Randolph-Sheppard Program may appeal any NYSCB decision or action pertaining to the Business Enterprise Program (BEP) program.

• The policy and procedures governing the NYSCB appeals process through which members of the Randolph-Sheppard Program can obtain a reexamination of the appropriateness of actions taken by NYSCB are contained in The Handbook for Vending Facility Operators.
• The policy and procedures governing the NYSCB appeals process through which participants of the Children's Program can obtain a reexamination of the appropriateness of actions taken are contained in the Handbook for NYSCB Children's Services.

What are the most common reasons for an NYSCB review or appeal?

Any counselor action or Agency decision such as:

• The denial of an application or the right to apply for services provided by NYSCB.
• The suspension, reduction or termination of services.
• isagreements pertaining to the scope of services provided.
• An individual’s allegation of coercive or otherwise improper conduct on the part of the counselor or other Agency employee involved in the individual's case.
• When an individual disagrees with decisions made by their counselor about their goals and services.
• When an individual has problems or delays in obtaining services, equipment, and training.
• Any other disagreement between the individual and counselor.
• If an individual objects to their case closure.

What are my options for review or appeal?

NYSCB provides both informal and formal means of appealing decisions.

• Initial review - An informal review conducted by the senior counselor (or the district manager if the senior counselor was involved in the decision being reviewed).
• Administrative review - An informal review conducted by NYSCB administrative staff.
• Mediation - A voluntary process between the individual and the appropriate NYSCB staff mediation is conducted by a trained, qualified and impartial mediator.
• Administrative Hearing or Fair Hearing - A formal hearing conducted by an ALJ designated by the Commissioner of the Office of Children and Family Services (OCFS) or member of the OCFS State Fair Hearings Board.

How do I make a Request for an administrative review, appeal or fair hearing?

An individual must request a review no later than 60 days after being informed of the action or decision the individual seeks to review, unless the individual can show good cause as to why the review request could not be made within the 60 day time frame. Regardless of whether the individual chooses to pursue the informal review process, an administrative hearing, if held, must be held within 60 days of the initial request for a review unless both parties agree to a specific time extension.

A request for a review will be made orally or in writing to the district manager using the Request for an Appeal form. A letter containing the information in the Request for an Appeal form will also be considered a request for a review. Upon request by the individual, the request for a review will be taken by dictation, using the Request for an Appeal form, by NYSCB staff at the district office. The individual’s signature should be obtained by mail if the request is made via telephone.

The Request for an Appeal form must include the following information:

• Individual’s name, address, phone number and preferred format,
• Representative’s name, address and phone number,
• District office and phone number of NYSCB counselor,
• Description of the decision or action being appealed,
• Type of review requested; and
• The individual’s preferred mode of communication (large type, braille, etc.).

What is an administrative hearing and how is it initiated?

An administrative hearing is the final level of appeal available to individuals through NYSCB. As part of the review process the district manager will forward a copy of the individual’s Request for an Appeal form to the NYSCB Appeals Coordinator in Home Office. In addition, in order to meet the required time frame for holding an administrative hearing, the Coordinator will send a copy of the Request for Appeal form (regardless of the type of review requested) to the Bureau of Special Hearings so that an administrative hearing can be scheduled.

Can I simply request an administrative hearing?

Individuals may choose to bypass the initial review, administrative review, and/or mediation processes and proceed directly to mediation or an administrative hearing.

You can request an Administrative Hearing by sending a letter or written request to:

Office of Children and Family Services
Special Hearings Bureau
52 Washington St., Room 228N
Rensselaer, NY 12144

Any written request for an administrative hearing should include:

• Individual’s name, address, phone number,
• Representative’s name, address and phone number,
• Dstrict office and phone number of NYSCB counselor,
• Description of the decision or action being appealed,
• The individual’s preferred means of communication (large print, Braille, tape or disk).

May I be represented by an attorney at the hearing?

Yes. Any party who requests an administrative review, mediation or administrative hearing under these procedures will be notified in writing that she/he has the right to be accompanied and represented by an authorized representative such as legal counsel, a Client Assistance Program (CAP) representative, lay advocate, relative or other spokesperson. All expenses caused by such representation, including but not limited to legal fees, will be the responsibility of the individual. Neither BSH nor NYSCB will appoint an attorney to represent you. BSH does not provide referral to attorneys.

Can I get access to information from the agency?

At the individual's (or his/her representative's) request, NYSCB will provide copies of pertinent laws, regulations, policies, procedures or record of services materials, in the individual's preferred medium (to the extent possible), in conjunction with an administrative review, mediation or administrative hearing. These requests must be signed by the individual or authorized representative and should be submitted in writing to the district office.

Who has the burden of proof at the hearing?

The Agency has the burden of proving that the Counselor’s action or Agency determination was not “arbitrary and capricious.” If the Counselor’s action or Agency’s determination is deemed reasonable based on the evidence presented then it must be sustained.