Fair Hearing Resources

Fishman Injunction Now in Effect

14 Apr, 2016

On April 13, 2016, OTDA issued OAH Procedures Transmittal 16-02 to all OAH staff, Hearing Officers, Supervisory Hearing Officers and social services districts to announce the implementation of the statewide preliminary injunction in Fishman v Daines, 09-CV-5248 (E.D.N.Y. March 4, 2016, corrected March 10, 2016), effective April 11, 2016.

This transmittal explains that

Effective April 11, 2016, pursuant to the preliminary injunction in Fishman v. Daines, upon default of a hearing requested only to contest any Medicaid related issue, the Office of Administrative Hearings (OAH) will issue a letter entitled Fishman Default Letter (FHIS Letter 18) to the appellant and the appellant’s representative. The date of the letter will be the mailing date, approximately two business days after the scheduled date of the hearing. . . . A copy of Letter 18 is attached.

The Fishman Default Letter will instruct clients who wish to have their hearing rescheduled to respond to the letter within ten days of the date of the post mark. Upon receipt of a request to reschedule a Medicaid hearing, Communications Intake Unit Staff (CIU) will remove the “HOLD” and notify the Scheduling Unit via email that the hearing is available for scheduling.

Other issues cannot be added to the previously defaulted Medicaid hearing.

At the rescheduled hearing, the Hearing Officer will determine whether the appellant had good cause for missing the initially scheduled hearing date.

If the appellant defaults the hearing a second time, a subsequent Fishman Default Letter will not be issued.

Ten days after the Fishman Default Letter is sent any hearings for which no response was received will be marked as defaulted by designated staff, and dismissed. If the appellant requests a re-opening of their Medicaid fair hearing after a default has been entered, CIU staff should make a good cause determination pursuant to the terms of State Regulation 18 NYCRR 358-5.5 and follow the same procedures in Transmittal 12-01.

Please read the Disclaimer.

Author: Gene Doyle, LMSW.

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