SubPart 358-5 - THE FAIR HEARING PROCESS

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Statutory Authority: 
Social Services Law, Sections 20[3][d], 22[8], 34 [3][f]

Section 358-5.0 - Introduction.

Section 358-5.0 Introduction. The fair hearing process is governed by this Subpart.

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Section 358-5.1 - Notice of fair hearing.

358-5.1 Notice of fair hearing. (a) Except for hearings which are given priority in scheduling in accordance with section 358-5.2 of this Subpart, at least 10 calendar days prior to the date of the fair hearing, a written notice of the fair hearing will be sent by the department to the appellant, appellant's authorized representative and to the social services agency.

(b) The fair hearing notice will state the following:

(1) the date, time and place of the fair hearing and an explanation of how and when a change in the date and place of the fair hearing may be requested, and under what circumstances a hearing will be rescheduled if neither the appellant nor the appellant's representative appears at the hearing;

(2) whether public assistance, medical assistance, food stamp benefits or services must be continued unchanged;

(3) the appellant's right upon request to necessary transportation or to transportation expenses to and from the fair hearing for the appellant and the appellant's authorized representatives and witnesses and for payment of the appellant's necessary child care costs and for any other necessary costs and expenditures related to the fair hearing;

(4) the appellant's right to be represented at the fair hearing by legal counsel, a relative, friend or other person or to represent oneself, and the right to bring witnesses to the fair hearing and to question witnesses at the hearing;

(5) the right to present written and oral evidence at the hearing;

(6) that the appellant should bring the notice of fair hearing to the hearing as well as all evidence that has a bearing on the case such as books, records and other forms of written evidence, and witnesses, if any;

(7) the appellant's right to review appellant's case record prior to and at the fair hearing;

(8) the appellant's right upon request to obtain copies of documents which the social services agency will present at the fair hearing and copies of other additional documents for the purpose of preparing for the fair hearing; and

(9) the right of a deaf or non-English speaking appellant to interpreter services at the fair hearing at no charge; and

(10) the issues which are to be the subject of the hearing.

 

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Section 358-5.2 - Scheduling.

358-5.2 Scheduling. (a) The fair hearing will be held at a time and place convenient to the appellant as far as practicable. In scheduling the hearing, the department will consider such things as the physical inability of the appellant to travel to the regular hearing location.

(b) Priority scheduling. (1) Except as set forth in paragraph (4) of this subdivision, a fair hearing which is subject to priority processing pursuant to section 358-3.2 of this Part must be scheduled as soon as practicable after the request therefor is made. In determining the date for which the hearing will be scheduled, consideration must be given to the nature and urgency of the appellant's situation, including any date before which the decision must be issued to allow for meaningful resolution of the issue under review.

(2) When a hearing is requested concerning food stamp benefits and the food stamp household intends to move from the local social services district before the decision normally would be issued, priority will be given to the scheduling of the hearing, taking into account any date before which the hearing must be scheduled to allow for the appellant to receive the decision while still in the district.

(3) Except as set forth in paragraph (4) of this subdivision, after a hearing which was scheduled on a priority basis as set forth above, the decision must be issued as soon as practicable. In determining the date by which the decision will be issued, consideration must be given to the nature and urgency of the appellant's situation, including any date before which the decision must be issued to allow for meaningful resolution of the issue under review. If, at the conclusion of a hearing which was scheduled on a priority basis the hearing officer determines that the issues do not warrant continued priority processing, the hearing officer will inform the parties that the issuance of the decision will not receive priority processing.

(4) When a fair hearing is requested concerning the involuntary discharge of a resident of a tier II facility after such resident requests and participates in a hearing, held by the facility or the social services district in which the facility is located, such fair hearing must be scheduled within seven working days of the request. The decision after the fair hearing must be issued within seven working days of the date of the fair hearing.

(c) When a hearing is requested pursuant to section 358-3.1(g) of this Part or has been given priority in accordance with section 358-3.2(d) of this Part, the hearing will be held within 30 days of the request, unless delayed by, or adjourned at the request of, the appellant.

 

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Section 358-5.3 - Adjourning the fair hearing.

358-5.3 Adjourning the fair hearing. (a) Upon request of either the appellant or a social services agency, the fair hearing may be rescheduled, upon a showing of good cause for requesting the delay.

(b) When in the judgment of the department or the hearing officer the parties' due process rights would best be served by adjourning the fair hearing, or if there are special circumstances which make proceeding with the case fundamentally unfair, the department or the hearing officer may reschedule the fair hearing.

(c) Requests to adjourn a fair hearing must be made in accordance with the instructions in the notice of fair hearing.

(d) If a fair hearing is adjourned based upon a request by the appellant, the time limit set forth in section 358-6.4 of this Part will be extended by the number of days the fair hearing has been postponed.

(e) If public assistance, medical assistance, food stamp benefits or services are continued in accordance with section 358-3.6 of this Part and the fair hearing is rescheduled for the reasons set forth in subdivision (a) or (b) of this section, an appellant has the right to have public assistance, medical assistance, food stamp benefits or services continued until the fair hearing decision is issued.

 

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Section 358-5.4 - Withdrawal of a request for a fair hearing.

358-5.4 Withdrawal of a request for a fair hearing. (a) The department will consider a hearing request to be withdrawn under the following circumstances:

(1) the department has received a written statement from the appellant or appellant's authorized representative stating that the request for a fair hearing is withdrawn; or

(2) the appellant or appellant's authorized representative has made a statement withdrawing the request to the hearing officer on the record at the hearing.

(b) An oral statement by telephone or in person to a social services agency employee that an appellant is withdrawing a request for a fair hearing is insufficient to withdraw a fair hearing request.

 

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Section 358-5.5 - Abandonment of a request for a fair hearing.

358-5.5 Abandonment of a request for a fair hearing. (a) The department will consider a fair hearing request abandoned if neither the appellant nor appellant's authorized representative appears at the fair hearing unless either the appellant or appellant's authorized representative has:

(1) contacted the department within 15 days of the scheduled date of the fair hearing to request that the fair hearing be rescheduled; and

(2) provide the department with a good cause reason for failing to appear at the fair hearing on the scheduled date; or

(3) contacted the department within 45 days of the scheduled date of the hearing and establishes that the appellant did not receive the notice of fair hearing prior to the scheduled hearing date.

(b) The department will restore a case to the calendar if the appellant or appellant's authorized representative has met the requirements of subdivision (a) of this section.

 

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Section 358-5.6 - Hearing officer.

358-5.6 Hearing officer. (a) The hearing shall be conducted by an impartial hearing officer employed by the department, who has not been involved in any way with the action in question.

(b) To ensure a complete record at the hearing, the hearing officer must:

(1) preside over the fair hearing and regulate the conduct and course of the fair hearing, including at the hearing officer's discretion, requiring sworn testimony, and administering the necessary oaths;

(2) make an opening statement explaining the nature of the proceeding, the issues to be heard and the manner in which the fair hearing will be conducted;

(3) elicit documents and testimony, including questioning the parties and witnesses, if necessary, particularly where the appellant demonstrates difficulty or inability to question a witness; however, the hearing officer will not act as a party's representative;

(4) where the hearing officer considers independent medical assessment necessary, require that an independent medical assessment be made part of the record when the fair hearing involves medical issues such as a diagnosis, an examining physician's report, or a medical review team's decision;

(5) adjourn the fair hearing to another time on the hearing officer's own motion or on the request of either party, to the extent allowable by section 358-5.3 of this Subpart;

(6) adjourn the fair hearing when in the judgment of the hearing officer it would be prejudicial to the due process rights of the parties to go forward with the hearing on the scheduled hearing date;

(7) review and evaluate the evidence, rule on the admissibility of evidence, determine the credibility of witnesses, make findings of fact relevant to the issues of the hearing which will be binding upon the commissioner unless such person has read a complete transcript of the hearing or has listened to the electronic recording of the fair hearing;

(8) at the hearing officer's discretion, where necessary to develop a complete evidentiary record, issue subpoenas, and/or require the attendance of witnesses and the production of books and records; and

(9) prepare an official report containing the substance of what transpired at the fair hearing and including a recommended decision to the commissioner.

(c) A party to a hearing may make a request to a hearing officer that the hearing officer remove himself or herself from presiding at the hearing.

(i) previously dealt in any way with the substance of the matter which is the subject of the hearing except in the capacity of hearing officer; or

(ii) any interest in the matter, financial or otherwise, direct or indirect, which will impair the independent judgment of the hearing officer; or

(iii) displayed bias or partiality to any party to the hearing.

(2) The hearing officer may independently determine to remove himself or herself from presiding at a hearing on the grounds set forth in paragraph (1) of this subdivision.

(3) The request for removal made by a party must:

(i) be made in good faith; and

(ii) be made at the hearing in writing or orally on the record; and

(iii) describe in detail the grounds for requesting that the hearing officer be removed.

(4) Upon receipt of a request for removal, the hearing officer must determine on the record whether to remove himself or herself from the hearing.

(5) If the hearing officer determines not to remove himself or herself from presiding at the hearing, the hearing officer must advise the party requesting removal that the hearing will continue but the request for removal will automatically be reviewed by the general counsel or the general counsel's designee.

(6) The determination of the hearing officer not to remove himself or herself will be reviewed by the general counsel or the general counsel's designee. Such review will include review of written documents submitted by the parties and the transcript of the hearing.

(7) The general counsel or the general counsel's designee must issue a written determination of whether the hearing officer should be removed from presiding at the hearing within 15 business days of the close of the hearing.

(8) The written determination of the general counsel or the general counsel's designee will be made part of the record.

 

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Section 358-5.7 - Who may be present at the fair hearing.

358-5.7 Who may be present at the fair hearing. The following persons may be present at a fair hearing:

(a) the appellant who has requested the fair hearing;

(b) the appellant's representative;

(c) counsel or other representatives of the social services agency;

(d) witnesses of either party and any who may be called by the hearing officer;

(e) an interpreter; and

(f) any other person admitted at the hearing officer's discretion, with the consent of the appellant.

 

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Section 358-5.8 - Media admission to fair hearing.

358-5.8 Media admission to fair hearing. (a) The media may be admitted to a fair hearing where the appellant has made a specific waiver of appellant's right to confidentiality both in writing and on the record and has clearly and unequivocally confirmed on the record that the appellant desires and consents to the presence of the media. The waiver must be unqualified, complete, and made with full knowledge of the ramifications of the waiver, including that the waiver is irrevocable.

(b) Where a waiver has been secured in accordance with subdivision (a) of this section, the extent of any access to be granted to the media is to be determined at the discretion of the hearing officer. In determining the extent of such access, the hearing officer will consider the following:

(1) maintenance of proper hearing decorum;

(2) potential disruption to the proceedings;

(3) adverse effect on witnesses;

(4) impediments to the making of a proper and accurate record;

(5) the physical space and conditions of the hearing room;

(6) potential disruption to the hearing officer, including impediments to the hearing officer's ability to discharge responsibilities; and

(7) any other factor which, in the discretion of the hearing officer, is necessary to ensure the orderly and proper conduct of the hearing and the creation of a complete and accurate hearing record or which is necessary in order to protect confidential information where, confidentiality cannot be waived by the appellant.

 

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Section 358-5.9 - Fair hearing procedures.

358-5.9 Fair hearing procedures. (a) At a fair hearing concerning the denial of an application for or the adequacy of public assistance, medical assistance, HEAP, food Stamp benefits or services, the appellant must establish that the agency's denial of assistance or benefits was not correct or that the appellant is eligible for a greater amount of assistance or benefits. Except, where otherwise established by law or regulation, in fair hearings concerning the discontinuance, reduction or suspension of public assistance, medical assistance, food stamp benefits or services, the social services agency must establish that its actions were correct.

(b) The fair hearing decision must be supported by and in accordance with substantial evidence.

(c) Technical rules of evidence followed by a court of law need not be applied. Irrelevant or unduly repetitious evidence and/or cross-examination may be excluded at the discretion of the hearing officer. Privileges recognized by law will be given effect.

(d) Any written record or document or part thereof to be offered as evidence may be offered in the form of a reproduction or copy where such reproduction or copy is identified satisfactorily as a complete and accurate reproduction or copy of the original material.

 

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Section 358-5.10 - Consolidated fair hearings.

358-5.10 Consolidated fair hearings. (a) The department may consolidate fair hearings where two or more persons request fair hearings in which the individual issues of fact are not disputed and the sole issue in each request is an objection to:

(1) Federal or State law or regulation, or local policy; or

(2) a change in Federal or State law.

(b) Each person whose case has been consolidated with another person's case has the right to:

(1) present one's own case or have one's case presented by a representative; and

(2) withdraw from the consolidated fair hearing and have an individual fair hearing.

 

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Section 358-5.11 - The hearing record.

358-5.11 The hearing record. (a) Fair hearing record. A written transcript or recording of the fair hearing testimony and exhibits, or the hearing officer's official report together with the recommended decision of the hearing officer, all papers and requests filed in the proceeding prior to the close of the fair hearing and the fair hearing decision, constitute the complete and exclusive record of the fair hearing. Where a decision without hearing is issued in accordance with section 358-6.2 of this Part, the documents submitted by the appellant and the social services agency constitute the complete and exclusive record of the fair hearing.

(b) Review of record. The exclusive record of the fair hearing is confidential; however, the exclusive record may be examined by either party or their authorized representative at the Office of Administrative Hearings, or upon request at some other location subject to the approval of the Office of Administrative Hearings.

 

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