by Gene Doyle, LMSW
In a May 1, 1991 memorandum to ALJs, Acting Deputy Counsel for Fair Hearings, Russell J. Hanks, set forth the Office of Administrative Hearings (OAH) policy with respect to social services districts' failures to comply with 18 NYCRR Part 358. Under the heading, "Failure to Provide Case Files at Hearings" (at p. 3), Mr. Hanks stated:
"18 NYCRR Section 358-4.3 requires that 'a representative of the social services agency must appear at the hearing along with the case record.' Violations of Section 358-4.3 not only compromise appellants' due process rights, they also frequently impede the hearing officer's ability to develop a full record and make specific directives.
"In New York City, for public assistance and medical assistance cases arising out of notices of intent, settlements in two federal lawsuits (Rodriguez and Annunziata) require the Human Resources Administration (HRA) to withdraw the underlying notices whenever complete, relevant and legible case records are not available at hearings. For all other situations in New York City and for all hearings outside of New York City, the following guidelines apply:
"For violations of 18 NYCRR Section 358-4.3, a recess or adjournment may be provided to enable the district to obtain the case record and the appellant to review it. This approach is only appropriate when there is a strong expectation that the district will obtain the case record and that the appellant will not be harmed by the delay. Multiple adjournments are not justifiable for this purpose. When the relevant case file materials are available, the hearing officer must ensure that the social services district provides the appellant or the appellant's representative with copies of the documentary evidence upon which it intends to rely, as required by 18 NYCRR Section 358-4.3(a).
"When a recess or adjournment is not appropriate (e.g., emergency assistance issues, certain non-aid-continuing cases), the hearing officer must elicit the appellant's testimony and other evidence and, to the extent possible, make specific directives in the decision. The hearing officer must rely on the appellant's credible testimony and direct specific relief consistent with this evidence. In those cases in which it is necessary to remand to the social services district for reconsideration or other action, the hearing officer must direct the district to act within a limited, specified time period (e.g., recompute eligibility and send appropriate notice within 10 days)."
In an August 23, 1996 memorandum to ALJs, Deputy General Counsel for Administrative Hearings, Mr. Hanks, addressed concerns raised by "the volume of decisions issued by our office [which] contains a significant and increasing percentage of 'general remands' and 'Rodriguez' withdrawals." Mr. Hanks stated (at pp. 1-2) that
"In notice based hearings, the terms of the stipulation in Rodriguez v. Blum require that the Agency withdraw its determination to discontinue, reduce or restrict the Appellant's public assistance if it does not appear at the hearing with the Appellant's complete relevant case record.
"'Complete relevant case record' is defined as .... 'that portion of an appellant's case record maintained by the agency in each of the following areas pertinent to the issue or issues at the hearing: (i) face to face recertification, (ii) income maintenance, (iii) employment." What constitutes a 'complete relevant case record' must be determined on a case by case basis. It is not necessarily the entire record for the client or even the entire record on the underlying subject matter. An assessment should be made by the hearing officer in each case to determine if all documents pertinent to the issue or issues are present at the hearing. If the hearing officer determines that all relevant documents are present, the hearing should proceed. In the event that all documents, pertinent to the issue or issues at the hearing, are not present, the Agency must withdraw its notice pursuant to Rodriguez. If the hearing officer concludes that the documents brought by the agency are not the complete relevant case record, but the agency will not withdraw the notice because it thinks it has brought the relevant case record, the hearing officer's decision should specify what documents were available at the hearing, why the documents were insufficient and what additional documents should have been included.
"In situations where the hearing officer determines that the complete, relevant case record is present and proceeds with the hearing, the issue may expand or the record may develop in such a way that additional documents, not present, become pertinent. In such circumstances a recess (to access WMS) or an adjournment (to obtain documents) may be appropriate. Such an adjournment is only appropriate when there is a strong expectation that the district will obtain the additional documents and that the appellant will not be unreasonably harmed by the delay. Multiple adjournments are not justifiable for this purpose.
"In non-notice based hearings, every effort should be made to develop a record sufficient to permit the issuance of a decision containing a specific directive."
In a February 20, 1998 letter to The Legal Aid Society's class counsel in Annunziata v Blum, 81 Civ. 302, Stipulation and Judgment (S.D.N.Y. February 25, 1983) and Rodriguez v Blum, 79 Civ. 4518, Stipulation and Judgment (S.D.N.Y. 1983), John E. Robitzek, the General Counsel of the New York State Office of Temporary and Disability Assistance (OTDA), stated:
"OTDA takes seriously its responsibility to comply with the directives in these cases, and hearing officers in the Office of Administrative Hearings are reminded periodically of the requirements concerning the production of the case at fair hearings."
After referring to the August 23, 1996 memorandum to ALJs from Deputy General Counsel for Administrative Hearings Russell J. Hanks, General Counsel Robitzek continued:
"It is my understanding that these practices are being followed. In 1997, for example, 62,851 notices were withdrawn because of HRA's failure to produce the relevant case record, and 20,253 reversals were issued on the same basis."
Note that federal regulations specifically require that agency case records be made available for review by appellants both prior to and during their Fair Hearings. See 45 CFR § 205.10(a)(13)(i); 42 CFR § 431.242(a)(1); 7 CFR § 273.15(p)(1).
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