Fair Hearing Resources

Requesting the Reopening of a Dismissed Fair Hearing Request

Article ID: 53
Last updated: 04 May, 2017

by Gene Doyle, LMSW

If a Fair Hearing request has been dismissed as abandoned, an appellant or an appellant's representatives may ask OAH to reopen the hearing request upon a showing of good cause. According to OTDA's guidelines for its OAH staff,

"Good cause is defined as unusual,unexpected, or unavoidable circumstances beyond the control of the appellant, such as: a death in the immediate family, serious illness, unavoidable temporary inability to obtain counsel or representation, or inclement weather that prevents all reasonable travel. It does not include any event that can be prevented or mitigated by the timely taking of reasonable action" (emphasis supplied).

Disposition Codes Reference Guide, at p. 1.

As a result of the settlement of Matter of Johnson v Berlin, Index No. 400081/2010 (Sup. Ct. New York Co. September 19, 2012), OTDA revised 18 NYCRR § 358-5.5, effective November 13, 2012.

Under this revised regulation, OAH will reopen a dismissed Fair Hearing request under the following conditions:

• The appellant or the appellant's representative must provide OAH with "a good cause reason for failing to appear at the fair hearing on the scheduled date." 18 NYCRR § 358-5.5(a)(2).

• The reopening request cannot be "made one year or more from the date of the defaulted fair hearing." 18 NYCRR § 358-5.5(d).

For dismissed appeals that had been designated as aid-continuing,

     "(c) If the appellant defaults a fair hearing that is subject to aid-continuing, the right to aid-continuing ends upon default.

     "(1) If the fair hearing is restored to the calendar based upon a request to do so made within 60 days from the date of the default, aid-continuing will be restored retroactively.

     "(2) If the fair hearing is restored to the calendar based upon a request to do so made 60 days or more from the date of the default, aid-continuing will be restored prospectively only from the date of the request to restore the fair hearing to the calendar."

18 NYCRR § 358-5.5(c).

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Article ID: 53
Last updated: 04 May, 2017
Revision: 2
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