Fair Hearing of the Month

Fair Hearing # 5424199H (May 4, 2010)

January 4, 2012

Congratulations to Robin Sparks, Nassau Suffolk Law Services

Agency fails to meet burden of proof when it alleges non-compliance with drug and alcohol treatment plan which is not presented at the hearing.

Appellant, who had been a recipient of PA for herself, was referred to and complied with Drug and Alcohol Treatment on or about June 4, 2009.  On or about July 16, 2009, Appellant was referred to another program for more intensive treatment and was mailed a letter requesting her to provide the Substance Abuse Assessment and Monitoring (SAAM) Unit with documentation of the new treatment facility on or about August 4, 2009.  Appellant failed to do so and her PA was discontinued by notice on August 19, 2009, sanctioning her for 45 days and until Appellant was willing to participate in the program.  Appellant requested this fair hearing on December 18, 2009 and reapplied for PA on January 10, 2010.

At the Fair Hearing, the Agency stated that since Appellant did not provide the requested documentation to the SAAM Unit by August 4, 2009, the Agency closed Appellant’s case on August 19, 2009.  Furthermore, the Agency stated that Appellant’s PA reapplication was denied because of her failure to appear for a subsequent SAAM assessment on February 3, 2010.

The Appellant’s representative argued that a treatment plan was not in the case record and none was presented at the Fair Hearing.  Therefore, the Agency failed to establish what was required of the Appellant and also failed to present the referral letter directing the change in treatment.

Also, the Appellant’s Representative argued that the Agency was aware of the Appellant’s psychological issues and determined that Appellant was not able to participate in Work Activities on January 12, 2010.  The Representative stated that the Appellant cannot be required to attend Drug and Alcohol Treatment when there is another debilitating factor, i.e., psychological issues, and should not have been subject to a work sanction by the Agency.

The ALJ held that since the Agency failed to present a treatment plan at the Fair Hearing, they failed to meet the burden of proof in this case.  The Agency must prove the determination contained in its own Notice of Intent.     Moreover, the ALJ found the Representative’s Work Activity argument issue misplaced because the 45-day sanctions are not work sanctions, but a sanction for failure to comply to a prescribed program.  Appellant’s dual diagnosis cannot be used as an excuse for not complying with drug and alcohol treatment requirements.  The ALJ concluded that the February 17 notice was moot because the reapplication was not necessary.  The discontinuance of Appellant’s PA and 45-day sanctions was not correct and is reversed.

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