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FILED: ALBANY COUNTY CLERK 06/12/2024 12:08 PM INDEX NO. 905551-24
NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 06/12/2024
In the Matter of the Application of
ZAINEB SALEM, ASHLEY KIBLIN, BRIAN
JURGENS, WENDY BRUNO, and
MICHAEL WANGLER,
ATTORNEY AFFIRMATION
Petitioners-Plaintiffs,
IN SUPPORT OF VERIFIED PETITION
-against- AND CLASS ACTION COMPLAINT
BARBARA GUINN, in her capacity as the Index No. _______________
Commissioner of the New York State Office
of Temporary and Disability Assistance,
Respondent-Defendant.
For a Judgment Pursuant to § 3001 and
Articles 9 and 78 of the Civil Practice Law
and Rules.
Susannah Howe, an attorney duly admitted to practice before the Courts of the State
of New York, affirms under penalty of perjury that:
1. I am a Legal Fellow at the National Center for Law and Economic Justice, counsel to
Plaintiffs-Petitioners Zaineb Salem, Ashley Kiblin, Brian Jurgens, Wendy Bruno, and
Michael Wangler in the above-captioned proceeding.
2. I make this Affirmation in support of Plaintiffs-Petitioners’ (hereinafter “Plaintiffs”)
Verified Petition and Complaint pursuant to CPLR Article 78 and CPLR 3001 et seq.
3. On December 21, 2023, I submitted a Freedom of Information Law (“FOIL”) request
through the Office of Temporary and Disability Assistance (“OTDA”) online FOIL
Records Access Center, requesting, inter alia, the monthly statewide Workload
Report for each month from January 2023 to November 2023.
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4. On January 18, 2024, I received an email notification from otdany@govqa.us to
howe@nclej.org that records responsive to the December 21, 2023 FOIL request were
available in OTDA’s online FOIL Records Access Center.
5. Attached as Exhibit A is a true and correct copy of the records downloaded from the
FOIL Records Access Center on January 18, 2024, with reference number R000151-
122123.
6. On February 1, 2024, I submitted a FOIL request through OTDA’s online FOIL
Records Access Center, requesting, inter alia, the same data described in ¶ 4(a), supra,
for the months of December 2023 and January 2024.
7. On February 13, 2024, I received an email notification from otdany@govqa.us to
howe@nclej.org that records responsive to the February 1, 2024 FOIL request were
available in OTDA’s online FOIL Records Access Center.
8. Attached as Exhibit B is a true and correct copy of the records downloaded from the
FOIL Records Access Center on February 13, 2024, as FOIL # S000668-020224.
9. I manually entered data on the outcomes of hearings from each monthly Workload
Report, received pursuant to FOILs R000151-122123 and S000668-020224, see ¶¶ 3-8,
into an Excel spreadsheet. Using data from each monthly statewide Workload
Report from January 2023 to January 2024 (excluding October 2023, for which no
report was produced), the spreadsheet lists, for each month, the total number of
issues decided in fair hearings and the number of issues decided that were affirmed,
reversed, settled, withdrawn by the agency, “CWM,” or “other.” I then used Excel
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formulas to calculate, for each month, the percentage of hearings affirmed, reversed,
settled, and withdrawn by the agency. I also used Excel formulas to calculate, for
each month, affirmance and reversal rates for only those issues decided by an
administrative law judge; for these formulas, the numerator was the number of
issues affirmed or reversed, as applicable, and the denominator was the sum of the
number of issues affirmed and reversed.
10. Attached as Exhibit C is a true and correct copy of the spreadsheet described in ¶ 9.
11. On May 22, 2024, I submitted a FOIL request through OTDA’s online FOIL Records
Access Center, requesting, for each month from January 2020 to the present, the
number of Fair Hearing requests that were requested in the report month for which
a decision has not been issued, including both scheduled and unscheduled hearings:
a. With aid continuing
b. Without aid continuing
c. Primary benefit covered (such as FA, SNA, FS, MA, HEAP, etc.).
12. On June 6, 2024, I received an email notification from otdany@govqa.us to
howe@nclej.org that records responsive to the May 22, 2024 FOIL request were
available in OTDA’s online FOIL Records Access Center.
13. Attached as Exhibit D is a true and correct copy of the records downloaded from the
FOIL Records Access Center on June 6, 2024, as FOIL # S001411-053124.
14. The records described in ¶ 13 were produced as a PDF document. I entered the data
into an Excel spreadsheet by copying and pasting the contents of the PDF into a
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Word document, using Word to format the copied data into a table, and then
copying and pasting the table into an Excel spreadsheet. I deleted the rows
containing data for ADH, HEAP, MA, SERV, and SSP hearings. I then used Excel
formulas to calculate the following:
a. For each month, the total combined number of Temporary Assistance (“TA”)
and Supplemental Nutrition Assistance Program (“SNAP”) hearings
requested in that month and still outstanding, determined by calculating the
sums of the monthly figures provided for Emergency Assistance (“EA”),
Family Assistance (“FA”), Safety Net Assistance (“SNA”), and SNAP;
b. For each month, of those hearings described in ¶ 14(a), the number of
hearings with aid continuing (“AC”) and without it, determined by
calculating the sum of the monthly figures provided for EA, FA, SNA, and
SNAP hearings with AC and without AC;
c. The total number of outstanding TA and SNAP hearings, determined by
calculating the sum of the figures provided for the total number of
outstanding EA, FA, SNA, and SNAP hearings. Respondent-Defendant’s
(hereinafter “Defendant’s”) data showed that there were 73,207 outstanding
TA and SNAP hearings;
d. The total number of outstanding TA and SNAP hearings with AC and
without AC, determined by calculating the sums of the monthly figures
provided for the number of outstanding EA, FA, SNA, and SNAP hearings
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with AC and without AC. Defendant’s data showed that there were 30,813
outstanding TA and SNAP hearings with AC, and 42,394 without AC;
e. The total number of outstanding TA hearing requests older than 3 months,
determined by calculating the sum of the monthly figures provided for EA,
FA, and SNA hearings, excluding the figures provided for the most recent 3
months. Defendant’s data showed that there were 35,125 outstanding TA
hearing requests older than 3 months;
f. The total number of outstanding TA hearing requests with AC older than 3
months, determined by calculating the sum of the monthly figures provided
for EA, FA, and SNA hearings with AC, excluding the figures provided for
the most recent 3 months. Defendant’s data showed that there were 20,389
outstanding TA hearing requests with AC older than 3 months;
g. The total number of outstanding TA hearing requests without AC older than
3 months, determined by calculating the sum of the monthly figures provided
for EA, FA, and SNA hearings without AC, excluding the figures provided
for the most recent 3 months. Defendant’s data showed that there were 14,736
outstanding TA hearing requests without AC older than 3 months;
h. The total number of outstanding SNAP hearing requests older than 2 months,
determined by calculating the sum of the monthly figures provided for SNAP
hearings, excluding the figures provided for the most recent 2 months.
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Defendant’s data showed that there were 18,300 outstanding SNAP hearing
requests older than 2 months;
i. The total number of outstanding SNAP hearing requests with AC older than
2 months, determined by calculating the sum of the monthly figures provided
for SNAP hearings with AC, excluding the figures provided for the most
recent 2 months. Defendant’s data showed that there were 6,317 outstanding
SNAP hearing requests with AC older than 2 months;
j. The total number of outstanding SNAP hearing requests without AC older
than 2 months, determined by calculating the sum of the monthly figures
provided for SNAP hearings without AC, excluding the figures provided for
the most recent 2 months. Defendant’s data showed that there were 11,983
outstanding SNAP hearing requests without AC older than 2 months;
k. The combined number of outstanding TA hearings older than 3 months and
SNAP hearings older than 2 months, determined by calculating the sum of
the figures described in ¶¶ 14(e) and (h). Defendant’s data showed that the
combined total of outstanding TA hearings older than 3 months and SNAP
hearings older than 2 months was 53,425 hearings;
l. The combined number of outstanding TA hearings with AC older than 3
months and SNAP hearings with AC older than 2 months, determined by
calculating the sum of the figures described in ¶¶ 14(f) and (i). Defendant’s
data showed that the combined total of outstanding TA hearings with AC
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older than 3 months and SNAP hearings with AC older than 2 months was
26,706 hearings;
m. The combined number of outstanding TA hearings without AC older than 3
months and SNAP hearings without AC older than 2 months, determined by
calculating the sum of the figures described in ¶¶ 14(g) and (j). Defendant’s
data showed that the combined total of outstanding TA hearings without AC
older than 3 months and SNAP hearings without AC older than 2 months
was 26,719 hearings;
n. The number of outstanding TA and SNAP hearings older than 12 months,
determined by calculating the sum of the figures described in ¶ 14(a),
excluding the figures for the most recent 12 months. Defendant’s data
showed that there were 15,797 outstanding TA and SNAP hearings more than
12 months old;
o. The number of outstanding TA and SNAP hearings older than 2 years,
determined by calculating the sum of the figures described in ¶ 14(a),
excluding the figures for the most recent 24 months. Defendant’s data
showed that there were 6,511 outstanding TA and SNAP hearings more than
2 years old;
p. The number of outstanding TA and SNAP hearings older than 3 years,
determined by calculating the sum of the figures described in ¶ 14(a),
excluding the figures for the most recent 36 months. Defendant’s data
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showed that there were 2,084 outstanding TA and SNAP hearings more than
3 years old.
15. Attached as Exhibit E is a true and correct copy of the spreadsheet described in ¶ 14.
16. Defendant maintains a searchable archive of redacted fair hearing decisions issued
since November 1, 2010 online at https://otda.ny.gov/hearings/search/. I searched
this archive for decisions issued since January 1, 2021 that included the words “aid
continuing,” “aid to continue,” and/or “overpayment.”
17. Because of the large number of search results, I was only able to review a small
fraction of the decisions that appeared in the results. However, a cursory review of
the search results revealed a significant number of cases where the appellant was
challenging a large overpayment incurred as a result of aid continuing benefits on a
delayed hearing, or where the appellant was receiving aid continuing, the decision
was issued after a long delay, and the decision ruled against the appellant, putting
them at risk of being assessed a large overpayment.
18. Attached as Exhibit F is a true and correct copy of the decision issued in Fair
Hearing #8592201J.
19. Fair Hearing #8592201J1 was requested to appeal Onondaga County’s recovery of a
$6,779 overpayment of SNAP benefits paid as aid continuing during the 8-month
period between May 1, 2020, and December 31, 2020, while the appellant was
waiting for a prior hearing (Exhibit F at 1). The decision upheld the overpayment (id.
1 https://otda.ny.gov/fair%20hearing%20images/2023-5/Redacted_8592201J.pdf.
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at 5-6). Had the appellant received a hearing and decision on the earlier request
within the 60-day regulatory time frame for SNAP hearings, the overpayment would
have been limited to the first two months of aid continuing, or $1,658 (see id. at 2).
But, because of Defendant’s delay, the appellant incurred an overpayment over four
times this amount.
20. Attached as Exhibit G is a true and correct copy of the decision issued in Fair
Hearing #8277069Q.
21. Fair Hearing #8277069Q2 was requested to appeal Broome County’s recovery of a
$6,209.50 overpayment of TA benefits paid as aid continuing during the 10-month
period between April 2020 and January 2021, while the appellant was waiting for a
prior hearing (Exhibit G at 1-2). The decision upheld the overpayment (id. at 3). Had
the earlier hearing been scheduled in accordance with the 90-day regulatory time
frame for TA hearings, the overpayment would have been limited to no more than
the first 3 months of assistance, likely about $1,862.85 (3/10 of $6,209.50). But,
because of Defendant’s delay, the appellant incurred an overpayment over three
times this amount.
22. Attached as Exhibit H is a true and correct copy of the decision issued in Fair
Hearing #8723422L.
2 https://otda.ny.gov/fair%20hearing%20images/2021-6/Redacted_8277069Q.pdf.
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23. Fair Hearing #8723422L3 was requested to appeal Sullivan County’s recovery of a
$494.00 overpayment of SNAP benefits paid as aid continuing during the 11-month
period between May 2022 and March 2023, while the appellant was waiting for a
prior hearing (Exhibit H at 1-2). During the hearing, the appellant argued that it was
not fair to establish an overpayment for the entire period because it was not her fault
that the hearing was not scheduled for almost a year (id. at 4). However, the decision
upheld the overpayment (id. at 5). Had the earlier hearing been scheduled in
accordance with the 60-day regulatory time frame for SNAP hearings, the
overpayment would have been limited to the first two months of aid continuing, or
$56 (see id. at 4). But, because of Defendant’s delay, the appellant incurred an
overpayment almost nine times this amount.
24. Attached as Exhibit I is a true and correct copy of the decision issued in Fair Hearing
#8228605H.
25. Fair Hearing #8228605H4 was requested on November 30, 2020, to appeal
Westchester County’s discontinuance of TA and reduction of SNAP based on the
appellant’s receipt of unemployment insurance (Exhibit I at 1). The appellant
received aid continuing (id. at 4). Defendant did not issue a decision until October
12, 2022, nearly two years after the request (id. at 12). The decision upheld the TA
3 https://otda.ny.gov/fair%20hearing%20images/2024-3/Redacted_8723422L.pdf.
4 https://otda.ny.gov/fair%20hearing%20images/2022-10/Redacted_8228605H.pdf.
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discontinuance (id.). Therefore, the LDSS may require this appellant to repay nearly
two years of TA benefits, an amount likely to be in the thousands of dollars.
26. Attached as Exhibit J is a true and correct copy of the decision issued in Fair Hearing
#8240015K.
27. Fair Hearing #8240015K5 was requested on December 21, 2020, to appeal New York
City’s discontinuance of TA and SNAP based on the appellant’s receipt of Social
Security Disability benefits (Exhibit J at 1, 5). The appellant received aid continuing
(id. at 2). Defendant did not issue a decision until October 3, 2023, nearly three years
after the request (id. at 6). The decision upheld the TA discontinuance (id. at 5).
Therefore, the LDSS may require this appellant to repay nearly three years of TA
benefits, an amount likely to be in the thousands of dollars.
28. Attached as Exhibit K is a true and correct copy of the decision issued in Fair
Hearing #8413049Y.
29. Fair Hearing #8413049Y6 was requested on February 9, 2022, to appeal Erie County’s
discontinuance of SNAP based on excess income from the appellant’s son’s
employment (Exhibit K at 1-2). The appellant contended this income was not
available to her because her son kept his finances separate (id. at 7). The appellant
received aid continuing (id. at 3). Defendant did not issue a decision until January 1,
2024, nearly two years after the request (id. at 8). The decision upheld the SNAP
5 https://otda.ny.gov/fair%20hearing%20images/2023-10/Redacted_8240015K.pdf.
6 https://otda.ny.gov/fair%20hearing%20images/2024-1/Redacted_8413049Y.pdf.
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discontinuance (id.). Therefore, the LDSS may require this appellant to repay nearly
two years of SNAP benefits, an amount likely to be in the thousands of dollars.
30. Attached as Exhibit L is a true and correct copy of the decision issued in Fair
Hearing #8471058J.
31. Fair Hearing #8471058J7 was requested on June 24, 2022, to appeal Washington
County’s reduction of SNAP based on the end of a demonstration project that
changed the method used to budget the appellant’s income (Exhibit L at 1, 2). The
hearing addressed three separate reduction notices that imposed monthly reductions
ranging from $26 to $35.8 The appellant received aid continuing (id. at 2). Defendant
did not issue a decision until August 15, 2023, nearly 14 months after the request (id.
at 18). The decision upheld the SNAP reduction (id.). Therefore, the LDSS may
require this appellant to repay over a year of aid continuing, or several hundred
dollars—a significant burden for an SSI recipient with total monthly income of only
$1,001 (id. at 3).
32. Attached as Exhibit M is a true and correct copy of the decision issued in Fair
Hearing #8312427J.
33. Fair Hearing #8312427J9 was requested on June 22, 2021, to appeal Suffolk County’s
discontinuance of SNAP based on the appellant’s receipt of gross monthly income of
7 https://otda.ny.gov/fair%20hearing%20images/2023-8/Redacted_8471058J.pdf.
8 The appellant received a June 2022 notice reducing his benefits from $206 to $171 monthly and
November 2022 and January 2023 notices reducing his benefits from $281 to $255 monthly (id. at 1).
9 https://otda.ny.gov/fair%20hearing%20images/2023-7/Redacted_8312427J.pdf.
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$1674.83, $79.83 over the applicable income limit of $1595.00 (Exhibit M at 1, 4). The
appellant received aid continuing (id. at 2). Defendant did not issue a decision until
July 10, 2023, over two years after the request (id. at 4). The decision upheld the
SNAP discontinuance (id.). Therefore, the LDSS may require this appellant to repay
nearly two years of SNAP benefits, an amount likely to be in the thousands of
dollars—likely a major hardship given that the appellant’s employment income
stopped in June 2021 (id.).
34. On May 22, 2024, I called Defendant’s telephone line for fair hearing-related
inquiries at 1 (800) 342-3334. I followed the prompts in the automated telephone
menu to receive fair hearing information and entered fair hearing number 8751443P,
which was listed on a “Fair Hearing Summary” page for Petitioner-Plaintiff Wendy
Bruno. I had received a copy of this notice from Ms. Bruno’s counsel at
Neighborhood Legal Services of Buffalo, who received it as part of the fair hearing
packet for Ms. Bruno provided by the Erie County Department of Social Services.
Defendant’s automated telephone line stated that Fair Hearing #8751443P was
requested on February 27, 2024.
I declare under penalty of perjury that the foregoing is true and correct to the best of
my knowledge and belief.
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Dated: June 11, 2024
Brooklyn, New York
_/s/ Susannah Howe ______________________
Susannah Howe, #6104228
National Center for Law and Economic
Justice
50 Broadway, Suite 1500
New York, NY 10004-3821
(212) 633-6967
howe@nclej.org
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FILED: ALBANY COUNTY CLERK 06/12/2024 12:08 PM INDEX NO. 905551-24 NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 06/12/2024 In the Matter of the Application of ZAINEB SALEM, ASHLEY KIBLIN, BRIAN JURGENS, WENDY BRUNO, and MICHAEL WANGLER, ATTORNEY AFFIRMATION Petitioners-Plaintiffs, IN SUPPORT OF VERIFIED PETITION -against- AND CLASS ACTION COMPLAINT BARBARA GUINN, in her capacity as the Index No. _______________ Commissioner of the New York State Office of Temporary and Disability Assistance, Respondent-Defendant. For a Judgment Pursuant to § 3001 and Articles 9 and 78 of the Civil Practice Law and Rules. Susannah Howe, an attorney duly admitted to practice before the Courts of the State of New York, affirms under penalty of perjury that: 1. I am a Legal Fellow at the National Center for Law and Economic Justice, counsel to Plaintiffs-Petitioners Zaineb Salem, Ashley Kiblin, Brian Jurgens, Wendy Bruno, and Michael Wangler in the above-captioned proceeding. 2. I make this Affirmation in support of Plaintiffs-Petitioners’ (hereinafter “Plaintiffs”) Verified Petition and Complaint pursuant to CPLR Article 78 and CPLR 3001 et seq. 3. On December 21, 2023, I submitted a Freedom of Information Law (“FOIL”) request through the Office of Temporary and Disability Assistance (“OTDA”) online FOIL Records Access Center, requesting, inter alia, the monthly statewide Workload Report for each month from January 2023 to November 2023. 1 1 of 14 FILED: ALBANY COUNTY CLERK 06/12/2024 12:08 PM INDEX NO. 905551-24 NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 06/12/2024 4. On January 18, 2024, I received an email notification from otdany@govqa.us to howe@nclej.org that records responsive to the December 21, 2023 FOIL request were available in OTDA’s online FOIL Records Access Center. 5. Attached as Exhibit A is a true and correct copy of the records downloaded from the FOIL Records Access Center on January 18, 2024, with reference number R000151- 122123. 6. On February 1, 2024, I submitted a FOIL request through OTDA’s online FOIL Records Access Center, requesting, inter alia, the same data described in ¶ 4(a), supra, for the months of December 2023 and January 2024. 7. On February 13, 2024, I received an email notification from otdany@govqa.us to howe@nclej.org that records responsive to the February 1, 2024 FOIL request were available in OTDA’s online FOIL Records Access Center. 8. Attached as Exhibit B is a true and correct copy of the records downloaded from the FOIL Records Access Center on February 13, 2024, as FOIL # S000668-020224. 9. I manually entered data on the outcomes of hearings from each monthly Workload Report, received pursuant to FOILs R000151-122123 and S000668-020224, see ¶¶ 3-8, into an Excel spreadsheet. Using data from each monthly statewide Workload Report from January 2023 to January 2024 (excluding October 2023, for which no report was produced), the spreadsheet lists, for each month, the total number of issues decided in fair hearings and the number of issues decided that were affirmed, reversed, settled, withdrawn by the agency, “CWM,” or “other.” I then used Excel 2 2 of 14 FILED: ALBANY COUNTY CLERK 06/12/2024 12:08 PM INDEX NO. 905551-24 NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 06/12/2024 formulas to calculate, for each month, the percentage of hearings affirmed, reversed, settled, and withdrawn by the agency. I also used Excel formulas to calculate, for each month, affirmance and reversal rates for only those issues decided by an administrative law judge; for these formulas, the numerator was the number of issues affirmed or reversed, as applicable, and the denominator was the sum of the number of issues affirmed and reversed. 10. Attached as Exhibit C is a true and correct copy of the spreadsheet described in ¶ 9. 11. On May 22, 2024, I submitted a FOIL request through OTDA’s online FOIL Records Access Center, requesting, for each month from January 2020 to the present, the number of Fair Hearing requests that were requested in the report month for which a decision has not been issued, including both scheduled and unscheduled hearings: a. With aid continuing b. Without aid continuing c. Primary benefit covered (such as FA, SNA, FS, MA, HEAP, etc.). 12. On June 6, 2024, I received an email notification from otdany@govqa.us to howe@nclej.org that records responsive to the May 22, 2024 FOIL request were available in OTDA’s online FOIL Records Access Center. 13. Attached as Exhibit D is a true and correct copy of the records downloaded from the FOIL Records Access Center on June 6, 2024, as FOIL # S001411-053124. 14. The records described in ¶ 13 were produced as a PDF document. I entered the data into an Excel spreadsheet by copying and pasting the contents of the PDF into a 3 3 of 14 FILED: ALBANY COUNTY CLERK 06/12/2024 12:08 PM INDEX NO. 905551-24 NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 06/12/2024 Word document, using Word to format the copied data into a table, and then copying and pasting the table into an Excel spreadsheet. I deleted the rows containing data for ADH, HEAP, MA, SERV, and SSP hearings. I then used Excel formulas to calculate the following: a. For each month, the total combined number of Temporary Assistance (“TA”) and Supplemental Nutrition Assistance Program (“SNAP”) hearings requested in that month and still outstanding, determined by calculating the sums of the monthly figures provided for Emergency Assistance (“EA”), Family Assistance (“FA”), Safety Net Assistance (“SNA”), and SNAP; b. For each month, of those hearings described in ¶ 14(a), the number of hearings with aid continuing (“AC”) and without it, determined by calculating the sum of the monthly figures provided for EA, FA, SNA, and SNAP hearings with AC and without AC; c. The total number of outstanding TA and SNAP hearings, determined by calculating the sum of the figures provided for the total number of outstanding EA, FA, SNA, and SNAP hearings. Respondent-Defendant’s (hereinafter “Defendant’s”) data showed that there were 73,207 outstanding TA and SNAP hearings; d. The total number of outstanding TA and SNAP hearings with AC and without AC, determined by calculating the sums of the monthly figures provided for the number of outstanding EA, FA, SNA, and SNAP hearings 4 4 of 14 FILED: ALBANY COUNTY CLERK 06/12/2024 12:08 PM INDEX NO. 905551-24 NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 06/12/2024 with AC and without AC. Defendant’s data showed that there were 30,813 outstanding TA and SNAP hearings with AC, and 42,394 without AC; e. The total number of outstanding TA hearing requests older than 3 months, determined by calculating the sum of the monthly figures provided for EA, FA, and SNA hearings, excluding the figures provided for the most recent 3 months. Defendant’s data showed that there were 35,125 outstanding TA hearing requests older than 3 months; f. The total number of outstanding TA hearing requests with AC older than 3 months, determined by calculating the sum of the monthly figures provided for EA, FA, and SNA hearings with AC, excluding the figures provided for the most recent 3 months. Defendant’s data showed that there were 20,389 outstanding TA hearing requests with AC older than 3 months; g. The total number of outstanding TA hearing requests without AC older than 3 months, determined by calculating the sum of the monthly figures provided for EA, FA, and SNA hearings without AC, excluding the figures provided for the most recent 3 months. Defendant’s data showed that there were 14,736 outstanding TA hearing requests without AC older than 3 months; h. The total number of outstanding SNAP hearing requests older than 2 months, determined by calculating the sum of the monthly figures provided for SNAP hearings, excluding the figures provided for the most recent 2 months. 5 5 of 14 FILED: ALBANY COUNTY CLERK 06/12/2024 12:08 PM INDEX NO. 905551-24 NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 06/12/2024 Defendant’s data showed that there were 18,300 outstanding SNAP hearing requests older than 2 months; i. The total number of outstanding SNAP hearing requests with AC older than 2 months, determined by calculating the sum of the monthly figures provided for SNAP hearings with AC, excluding the figures provided for the most recent 2 months. Defendant’s data showed that there were 6,317 outstanding SNAP hearing requests with AC older than 2 months; j. The total number of outstanding SNAP hearing requests without AC older than 2 months, determined by calculating the sum of the monthly figures provided for SNAP hearings without AC, excluding the figures provided for the most recent 2 months. Defendant’s data showed that there were 11,983 outstanding SNAP hearing requests without AC older than 2 months; k. The combined number of outstanding TA hearings older than 3 months and SNAP hearings older than 2 months, determined by calculating the sum of the figures described in ¶¶ 14(e) and (h). Defendant’s data showed that the combined total of outstanding TA hearings older than 3 months and SNAP hearings older than 2 months was 53,425 hearings; l. The combined number of outstanding TA hearings with AC older than 3 months and SNAP hearings with AC older than 2 months, determined by calculating the sum of the figures described in ¶¶ 14(f) and (i). Defendant’s data showed that the combined total of outstanding TA hearings with AC 6 6 of 14 FILED: ALBANY COUNTY CLERK 06/12/2024 12:08 PM INDEX NO. 905551-24 NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 06/12/2024 older than 3 months and SNAP hearings with AC older than 2 months was 26,706 hearings; m. The combined number of outstanding TA hearings without AC older than 3 months and SNAP hearings without AC older than 2 months, determined by calculating the sum of the figures described in ¶¶ 14(g) and (j). Defendant’s data showed that the combined total of outstanding TA hearings without AC older than 3 months and SNAP hearings without AC older than 2 months was 26,719 hearings; n. The number of outstanding TA and SNAP hearings older than 12 months, determined by calculating the sum of the figures described in ¶ 14(a), excluding the figures for the most recent 12 months. Defendant’s data showed that there were 15,797 outstanding TA and SNAP hearings more than 12 months old; o. The number of outstanding TA and SNAP hearings older than 2 years, determined by calculating the sum of the figures described in ¶ 14(a), excluding the figures for the most recent 24 months. Defendant’s data showed that there were 6,511 outstanding TA and SNAP hearings more than 2 years old; p. The number of outstanding TA and SNAP hearings older than 3 years, determined by calculating the sum of the figures described in ¶ 14(a), excluding the figures for the most recent 36 months. Defendant’s data 7 7 of 14 FILED: ALBANY COUNTY CLERK 06/12/2024 12:08 PM INDEX NO. 905551-24 NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 06/12/2024 showed that there were 2,084 outstanding TA and SNAP hearings more than 3 years old. 15. Attached as Exhibit E is a true and correct copy of the spreadsheet described in ¶ 14. 16. Defendant maintains a searchable archive of redacted fair hearing decisions issued since November 1, 2010 online at https://otda.ny.gov/hearings/search/. I searched this archive for decisions issued since January 1, 2021 that included the words “aid continuing,” “aid to continue,” and/or “overpayment.” 17. Because of the large number of search results, I was only able to review a small fraction of the decisions that appeared in the results. However, a cursory review of the search results revealed a significant number of cases where the appellant was challenging a large overpayment incurred as a result of aid continuing benefits on a delayed hearing, or where the appellant was receiving aid continuing, the decision was issued after a long delay, and the decision ruled against the appellant, putting them at risk of being assessed a large overpayment. 18. Attached as Exhibit F is a true and correct copy of the decision issued in Fair Hearing #8592201J. 19. Fair Hearing #8592201J1 was requested to appeal Onondaga County’s recovery of a $6,779 overpayment of SNAP benefits paid as aid continuing during the 8-month period between May 1, 2020, and December 31, 2020, while the appellant was waiting for a prior hearing (Exhibit F at 1). The decision upheld the overpayment (id. 1 https://otda.ny.gov/fair%20hearing%20images/2023-5/Redacted_8592201J.pdf. 8 8 of 14 FILED: ALBANY COUNTY CLERK 06/12/2024 12:08 PM INDEX NO. 905551-24 NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 06/12/2024 at 5-6). Had the appellant received a hearing and decision on the earlier request within the 60-day regulatory time frame for SNAP hearings, the overpayment would have been limited to the first two months of aid continuing, or $1,658 (see id. at 2). But, because of Defendant’s delay, the appellant incurred an overpayment over four times this amount. 20. Attached as Exhibit G is a true and correct copy of the decision issued in Fair Hearing #8277069Q. 21. Fair Hearing #8277069Q2 was requested to appeal Broome County’s recovery of a $6,209.50 overpayment of TA benefits paid as aid continuing during the 10-month period between April 2020 and January 2021, while the appellant was waiting for a prior hearing (Exhibit G at 1-2). The decision upheld the overpayment (id. at 3). Had the earlier hearing been scheduled in accordance with the 90-day regulatory time frame for TA hearings, the overpayment would have been limited to no more than the first 3 months of assistance, likely about $1,862.85 (3/10 of $6,209.50). But, because of Defendant’s delay, the appellant incurred an overpayment over three times this amount. 22. Attached as Exhibit H is a true and correct copy of the decision issued in Fair Hearing #8723422L. 2 https://otda.ny.gov/fair%20hearing%20images/2021-6/Redacted_8277069Q.pdf. 9 9 of 14 FILED: ALBANY COUNTY CLERK 06/12/2024 12:08 PM INDEX NO. 905551-24 NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 06/12/2024 23. Fair Hearing #8723422L3 was requested to appeal Sullivan County’s recovery of a $494.00 overpayment of SNAP benefits paid as aid continuing during the 11-month period between May 2022 and March 2023, while the appellant was waiting for a prior hearing (Exhibit H at 1-2). During the hearing, the appellant argued that it was not fair to establish an overpayment for the entire period because it was not her fault that the hearing was not scheduled for almost a year (id. at 4). However, the decision upheld the overpayment (id. at 5). Had the earlier hearing been scheduled in accordance with the 60-day regulatory time frame for SNAP hearings, the overpayment would have been limited to the first two months of aid continuing, or $56 (see id. at 4). But, because of Defendant’s delay, the appellant incurred an overpayment almost nine times this amount. 24. Attached as Exhibit I is a true and correct copy of the decision issued in Fair Hearing #8228605H. 25. Fair Hearing #8228605H4 was requested on November 30, 2020, to appeal Westchester County’s discontinuance of TA and reduction of SNAP based on the appellant’s receipt of unemployment insurance (Exhibit I at 1). The appellant received aid continuing (id. at 4). Defendant did not issue a decision until October 12, 2022, nearly two years after the request (id. at 12). The decision upheld the TA 3 https://otda.ny.gov/fair%20hearing%20images/2024-3/Redacted_8723422L.pdf. 4 https://otda.ny.gov/fair%20hearing%20images/2022-10/Redacted_8228605H.pdf. 10 10 of 14 FILED: ALBANY COUNTY CLERK 06/12/2024 12:08 PM INDEX NO. 905551-24 NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 06/12/2024 discontinuance (id.). Therefore, the LDSS may require this appellant to repay nearly two years of TA benefits, an amount likely to be in the thousands of dollars. 26. Attached as Exhibit J is a true and correct copy of the decision issued in Fair Hearing #8240015K. 27. Fair Hearing #8240015K5 was requested on December 21, 2020, to appeal New York City’s discontinuance of TA and SNAP based on the appellant’s receipt of Social Security Disability benefits (Exhibit J at 1, 5). The appellant received aid continuing (id. at 2). Defendant did not issue a decision until October 3, 2023, nearly three years after the request (id. at 6). The decision upheld the TA discontinuance (id. at 5). Therefore, the LDSS may require this appellant to repay nearly three years of TA benefits, an amount likely to be in the thousands of dollars. 28. Attached as Exhibit K is a true and correct copy of the decision issued in Fair Hearing #8413049Y. 29. Fair Hearing #8413049Y6 was requested on February 9, 2022, to appeal Erie County’s discontinuance of SNAP based on excess income from the appellant’s son’s employment (Exhibit K at 1-2). The appellant contended this income was not available to her because her son kept his finances separate (id. at 7). The appellant received aid continuing (id. at 3). Defendant did not issue a decision until January 1, 2024, nearly two years after the request (id. at 8). The decision upheld the SNAP 5 https://otda.ny.gov/fair%20hearing%20images/2023-10/Redacted_8240015K.pdf. 6 https://otda.ny.gov/fair%20hearing%20images/2024-1/Redacted_8413049Y.pdf. 11 11 of 14 FILED: ALBANY COUNTY CLERK 06/12/2024 12:08 PM INDEX NO. 905551-24 NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 06/12/2024 discontinuance (id.). Therefore, the LDSS may require this appellant to repay nearly two years of SNAP benefits, an amount likely to be in the thousands of dollars. 30. Attached as Exhibit L is a true and correct copy of the decision issued in Fair Hearing #8471058J. 31. Fair Hearing #8471058J7 was requested on June 24, 2022, to appeal Washington County’s reduction of SNAP based on the end of a demonstration project that changed the method used to budget the appellant’s income (Exhibit L at 1, 2). The hearing addressed three separate reduction notices that imposed monthly reductions ranging from $26 to $35.8 The appellant received aid continuing (id. at 2). Defendant did not issue a decision until August 15, 2023, nearly 14 months after the request (id. at 18). The decision upheld the SNAP reduction (id.). Therefore, the LDSS may require this appellant to repay over a year of aid continuing, or several hundred dollars—a significant burden for an SSI recipient with total monthly income of only $1,001 (id. at 3). 32. Attached as Exhibit M is a true and correct copy of the decision issued in Fair Hearing #8312427J. 33. Fair Hearing #8312427J9 was requested on June 22, 2021, to appeal Suffolk County’s discontinuance of SNAP based on the appellant’s receipt of gross monthly income of 7 https://otda.ny.gov/fair%20hearing%20images/2023-8/Redacted_8471058J.pdf. 8 The appellant received a June 2022 notice reducing his benefits from $206 to $171 monthly and November 2022 and January 2023 notices reducing his benefits from $281 to $255 monthly (id. at 1). 9 https://otda.ny.gov/fair%20hearing%20images/2023-7/Redacted_8312427J.pdf. 12 12 of 14 FILED: ALBANY COUNTY CLERK 06/12/2024 12:08 PM INDEX NO. 905551-24 NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 06/12/2024 $1674.83, $79.83 over the applicable income limit of $1595.00 (Exhibit M at 1, 4). The appellant received aid continuing (id. at 2). Defendant did not issue a decision until July 10, 2023, over two years after the request (id. at 4). The decision upheld the SNAP discontinuance (id.). Therefore, the LDSS may require this appellant to repay nearly two years of SNAP benefits, an amount likely to be in the thousands of dollars—likely a major hardship given that the appellant’s employment income stopped in June 2021 (id.). 34. On May 22, 2024, I called Defendant’s telephone line for fair hearing-related inquiries at 1 (800) 342-3334. I followed the prompts in the automated telephone menu to receive fair hearing information and entered fair hearing number 8751443P, which was listed on a “Fair Hearing Summary” page for Petitioner-Plaintiff Wendy Bruno. I had received a copy of this notice from Ms. Bruno’s counsel at Neighborhood Legal Services of Buffalo, who received it as part of the fair hearing packet for Ms. Bruno provided by the Erie County Department of Social Services. Defendant’s automated telephone line stated that Fair Hearing #8751443P was requested on February 27, 2024. I declare under penalty of perjury that the foregoing is true and correct to the best of my knowledge and belief. 13 13 of 14 FILED: ALBANY COUNTY CLERK 06/12/2024 12:08 PM INDEX NO. 905551-24 NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 06/12/2024 Dated: June 11, 2024 Brooklyn, New York _/s/ Susannah Howe ______________________ Susannah Howe, #6104228 National Center for Law and Economic Justice 50 Broadway, Suite 1500 New York, NY 10004-3821 (212) 633-6967 howe@nclej.org 14 14 of 14