Section 60-1.6 - Fair hearings for applicants and participants

60-1.6 Fair hearings for applicants and participants.

(a) A fair hearing shall be scheduled within 21 days from the date the department receives the request for a hearing.

(b) A written notice of hearing shall be sent by certified mail to the petitioner, his/her representative, if any, and the local agency at least 10 days prior to the scheduled date of the hearing.

(c) The notice of hearing shall:

(1) specify the date, time and place of the hearing;

(2) state briefly the issues which are to be the subject of the hearing;

(3) explain the manner in which the fair hearing will be conducted;

(4) apprise the petitioner of the right to be represented by an attorney, parent or guardian, relative, friend or other spokesperson; to testify, present documentary evidence, advance arguments, produce witnesses, and question or refute any testimony or evidence, including an opportunity to cross-examine adverse witnesses; and to examine prior to and during the hearing the documents and records supporting the determination or action under appeal;

(5) state that failure to appear at the hearing shall constitute waiver of the petitioner's right to a hearing; and

(6) as appropriate pursuant to sections 60-1.2(b)(8) and 60-1.5(b) of this Subpart, advise a petitioner participant that WIC program benefits may be continued pending the fair hearing decision.

(d) A fair hearing shall be conducted under the provisions of Part 51 of this Title by an administrative law judge who has not been involved previously in any way with the matter under appeal. The administrative law judge may order, when relevant and necessary, an independent medical assessment or professional evaluation.

(e) A copy of the fair hearing decision shall be sent to the petitioner, his/her representative, if any, and the local agency within 45 days from the date on which the request for the hearing was received by the department, except that such time may be extended if the petitioner has requested and been granted a postponement of his/her hearing. A fair hearing decision unfavorable to the petitioner shall contain a statement informing the petitioner of the availability of judicial review as provided in the Civil Practice Law and Rules.

(f) WIC program benefits shall not continue during an appeal by a denied applicant or participant of an adverse hearing decision made by an administrative law judge or the commissioner. Retroactive benefits may not be ordered as a result of the fair hearing.

(g) When a local agency receives a copy of a fair hearing decision, it shall comply with the decision immediately and shall notify the department in writing of such compliance. The department shall review the compliance statement to assure that the local agency has complied correctly.

(h) A record of each fair hearing shall be maintained as provided in Part 51 of this Title and shall be retained for at least three years from the date of the decision. The record of each fair hearing shall be available for public inspection and copying.
 

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