insufficient time for the documents to be mailed and received before the date of the hearing the documents can be presented at the hearing instead of being mailed. This regulation also provides that HRA can adjourn the fair hearing to obtain the evidence packet rather than withdraw.
Preparing the Witnesses
An A/R may bring witnesses to support his/her case. An A/R or his/her representative should prepare witnesses by reviewing the facts and discussing questions that may be asked. The HRA representative will be allowed the opportunity to cross-examine A/R, as well as their witnesses. Witnesses, as well as an A/R, should give direct answers and not volunteer information that was not requested. If the questions stray from the stated issues, point this out to the ALJ. If the A/R objects to a question that the HRA representative asks, wait until the ALJ has made a ruling. Inform the witnesses to answer only the question the HRA representative asks, as well as not to answer any question they do not understand until the question has been clarified.
PROCEDURES AT FAIR HEARINGS 18 NYCRR § 358-5.1-5.11
Public Assistance and Food Stamps hearings in NYC are held at 14 Boerum Place in Brooklyn. If it is a Medicaid only case, it is generally held at 330 W. 34th Street in Manhattan. Usually there are three people at the hearing: the A/R, the Administrative Law Judge (ALJ) and the HRA representative. A recording is made of the entire fair hearing using telephone equipment connected to recording devices in OTDA’s Albany offices. The fair hearing record consists of the statements and testimony that is recorded, any documents that are given to the ALJ during the hearing (whether or not admitted into evidence), the ALJ’s notes, and the fair hearing decision. Only statements made on the record, and the documents in evidence, may be considered when the decision is made. If
the hearing is lost and later appealed, the Court is often limited to considering statements, testimony and documents that are in the record. If the ALJ refuses to accept a document into evidence, the ALJ still must make the document part of the fair hearing record.
The ALJ should begin the hearing by explaining the issues, how the hearing will be conducted, and the rights of the parties. If all the issues are not stated, make sure all other reasons are stated at this time and present the A/R’s original written request for proof, if necessary. If additional reasons are added at this point, the ALJ may not allow it. The A/R may request another fair hearing with the ALJ at this time; however, this second hearing must also fall within the originally established time limits. Also, if there were aid continuing violations, inform the ALJ, who can order HRA to provide retroactive and prospective benefits to the recipient. It is important that the A/R appear at the fair hearing office in a timely manner. If he/she does not arrive by 11 AM for a morning hearing and 3 PM for an afternoon hearing, or fails to attend the hearing, OTDA will consider the fair hearing request abandoned and the A/R will automatically lose his/her appeal, as well as his/her aid continuing, if in receipt of such benefits. In such instances, fair hearings can be rescheduled when:
1. The A/R is able to show good cause (see below, Adjournments, for definition); the A/R should speak to one of the workers in the adjournment office at the fair hearing location or call (877) 209-1134, or write OTDA within 15 days of the scheduled date at, P.O. Box 1930, Albany, New York, 12201, or
2. The A/R is able to establish they did not receive the Notice of Hearing prior to the hearing; the A/R should be able to reschedule a hearing within 45 days after the scheduled hearing date.
Burden of Proof
The burden of proof rests upon the party who must persuade the ALJ that the proposed action or proceeding is legal. Thus, when HRA proposes to change benefits by discontinuing, reducing, restricting or suspending benefits, the burden of proof rests on HRA and the HRA representative should present its side first. This is important because if the HRA representative is unprepared to go first, the recipient may win the fair hearing without doing anything. When the ALJ attempts to have the recipient go first when it is HRA’s obligation, the recipient should object and make a statement to that effect. If the
ALJ insists, ask to speak to a supervisor. On the other hand, when the applicant is challenging a denial of benefits, the ALJ may properly ask the applicant to go first because the burden of proof in that situation is on the applicant.
At the fair hearing, it is the responsibility of the HRA representative to appear with a copy of the Notice of Intent. The ALJ must review the sufficiency of the notice to assess whether it complies with OTDA’s regulations and due process. If the notice is inadequate, the ALJ must decide whether any inadequacy results in harm to the A/R. If the ALJ decides there is harm, the ALJ can declare the notice defective and rule for the A/R. If the ALJ rules that the notice is inadequate, but does not create serious harm to the A/R, the ALJ is likely to continue with the fair hearing. It is usually best to continue with the A/R claim as if the notice were adequate using the fact of its inadequacy as grounds for an appeal to the next level, if the initial procedures fail to remedy the situation for the A/R.
If the HRA representative fails to present the Notice of Intent, it must withdraw. Often the ALJ will ask the AR for a copy when the HRA representative does not have the notice. If HRA has the burden of proof, the A/R has no obligation to provide the notice for HRA, unless the ALJ insists on having the A/R give him/her the notice.
When HRA is prepared to present its case, its representative will explain why HRA is taking the stated action. They will introduce evidence, typically documents, which support its case. It is very important to make sure that the presented documents are related to the issue on the Notice of Intent. For example, a Notice of Intent may state the recipient failed to cooperate with HRA on February 22, 2004, but the documents the HRA representative seeks to admit relate to something that happened in March 2003. The A/R should object to HRA’s being able to admit them. This happens frequently because the Job Center uses the date it found out about the alleged failures to cooperate rather than the actual date when the violation allegedly happened.
The A/R is entitled to have copies of any document the HRA representative presents to the ALJ. If the HRA representative does not have copies for the A/R, the ALJ should make copies right after the fair hearing and give them to the A/R. If the A/R received
documents under Rivera, the HRA representative should be precluded from presenting any documents that were not sent in response to the Rivera the request.
A/R’s may make objections during the fair hearing. This includes objecting to any evidence that is not relevant to their case, that is, evidence or testimony that has nothing to do with the issue(s) identified for the fair hearing. A/R’s should also object to any evidence that is not clear or reliable. For example, reports that are not signed, not dated, contradictory, incomplete, or in any way, defective. In addition, while ALJ’s typically accept hearsay evidence (a statement from outside the fair hearing offered as proof of the matter that the statement asserts) as part of the fair hearing record, A/R’s should object to any testimony a City representative attempts to present as if they have personal knowledge of the issue. Finally, objections should be made when the HRA representative attempts to give their own opinions in the testimony.
Presentation of the Applicant/Recipient
A/R’s may cross-examine the HRA representative and any witnesses HRA may bring. After questioning the HRA representative, the A/R can present his/her side. The A/R or his/her representative can make an opening statement that sets out the facts of the A/R’s case. Tell the A/R’s story with dates and times as accurately as possible. Give the ALJ and the HRA representative copies of all the documents and letters that supports the A/R’s case. If there is something inaccurate in the case record that the HRA representative has produced, refer to the particular paper and inform the ALJ. If possible, have a copy of the statutes, regulations or court decisions that apply to the A/R’s issues. Before the hearing closes the A/R or his/her representative can make a closing statement. It should summarize the arguments, point out the inconsistencies of HRA’s case, and explain how the law requires a decision in the A/R’s favor.
Non-Receipt of a Mailing from HRA
If the A/R did not comply with a program requirement because he/she did not receive a Notice of Intent, a letter, or appointment notice, the A/R should testify to this effect at the
fair hearing. The ALJ must hear the issue of whether the individual received notice. While the HRA representative is unable to testify that a person actually did receive notice, they will attempt to prove HRA sent a written notice by introducing a copy of it and an affidavit describing HRA’s mailing policy. The ALJ will weigh the evidence, once the HRA representative has offered some proof of mailing. If the A/R is successful and the ALJ agrees a notice was not mailed or received, HRA must withdraw its notice. However, it is unusual for the ALJ to find in favor of the A/R on this issue. If the ALJ does find in favor of the A/R, HRA may resend the notice, initiating the intended action once again.
Meachem v. Wing challenges the OTDA’s policy and practice of accepting without question HRA’s claim that it mailed a particular notice and not providing recipient’s with the opportunity to establish that the notice was not mailed or was not received. For further information, call Ricky Blum at the Legal Aid Society at (212) 577-3648 or Ian Feldman at the Legal Aid Society, at (718) 991-4758 x 248.
ALJ’s Closing Statement
The ALJ should make a short closing statement at the conclusion of the fair hearing, but will not state the final decision. The ALJ will send the entire hearing record, as well as a recommendation of the outcome to the Commissioner of the State OTDA, who will review the hearing record and issue the written decision.
ADJOURNMENT 18 NYCRR § 358-5.1-4
An adjournment is a suspension of a fair hearing until a later date. A/R’s can adjourn upon showing “good cause”, which the State’s regulations define as:
1. 2. 3. 4.
illness inability to travel inability to find child care inability of the A/R’s representative to be present on the scheduled date
5. the need to subpoena a witness 6. the need to examine documents HRA has produced 7. the need for more time to prepare for the haring, the need for more time to find a representative
OTDA is required to mail a Notice of Fair Hearing at least ten days prior to the hearing date. If it fails to do so and the A/R is unable to attend on the scheduled date, the A/R is entitled to have the hearing adjourned.
Adjournment can be requested as early as possible on the date of the hearing or before the date of the hearing by calling (877) 209-1134 or use the OTDA adjournment form, located on the Greater Upstate Law Projects Website at http://www.wnylc.net/onlineresources/otda_forms.asp. An adjournment can also be requested during the hearing. A new fair hearing date will be mailed out about three weeks later.