by Gene Doyle, LMSW
As part of the Stipulation and Order of Settlement in Meachem v Wing, 99 Civ. 4630 (S.D.N.Y. April 20, 2005), Deputy General Counsel for Administrative Hearings, Russell J. Hanks, issued an April 13, 2005 memorandum on "Fair Hearing Training; Meachem v Wing." Under the heading, "Mailing affidavits" (at p. 2), Mr. Hanks stated that:
"In cases where affidavits are offered to establish the local agency’s procedures with respect to mailing a document, the hearing officer should evaluate whether the affidavit is appropriate for the type of document mailed, and determine whether the presumption of mailing the document was established in the appellant’s case. To that end, the evidence presented should correspond with the process described in the affidavit. The hearing officer should also evaluate whether the agency has the appellant’s correct address in its records, and , if not, whether the appellant ever properly and timely notified the agency of the his/her correct address.
"In sum, the hearing officer should examine and consider all the documents and other evidence in the record in order to determine whether or not the mailing procedure alleged in the affidavit(s) was used for the mailing in question."
Under the heading, "Developing the hearing record" (at p. 2), Mr. Hanks instructed that
"If the appellant alleges non-receipt of a mailed document, the hearing officer should explain to both parties that the agency will first be asked to provide evidence that establishes the document was properly mailed and, if mailing is established, the appellant will have a full and fair opportunity to explain why the document at issue was not received. The hearing officer may find an appellant’s uncorroborated testimony as sufficient to rebut the agency’s claim that the appellant was mailed a notice. If the appellant identifies a document which appears to the hearing officer can corroborate the appellant’s testimony on a material issue, the hearing officer should ask the appellant whether he or she would like an adjournment for that purpose and, if so, an adjournment should be granted. The hearing officer may issue subpoenas or take other action, pursuant to 18 NYCRR 358-5.6(b)(8), to compel production of either witnesses or documents."
ALJs attended a three-hour Continuing Legal Education (CLE) course on April 15, 2005 in accordance with the Meachem Stipulation and Order of Settlement.
Meachem was a class action brought by New York City recipients who request fair hearings to contest the reduction or discontinuance of their Public Assistance (PA), Medical Assistance (MA) and/or Food Stamp (FS) benefits for failing to respond to a prior letter, notice, or any other mailing from the New York City Human Resources Administration (HRA) scheduling an appointment or otherwise requiring some other action by the recipient.
According to the CLE course description,
"This course is designed to improve hearing officer performance through an increased awareness of recent court decisions and settlements addressing procedural due process requirements at administrative hearings. There will be discussion of the various procedural due process requirements as they arise in the context of cases addressing the issue of proof of mailing, as raised in the federal class action, Meachem v. Wing, 99 Civ. 4630. This course will address the proper means of conducting an OTDA administrative hearing, including, among other matters, making an opening statement, identifying parties on the record, taking evidence and developing the record, subpoenas, adjournments and handling proof of mailing issues."
One of the Office of Administrative Hearings (OAH) trainers explained in the introduction to the CLE materials that
"I can tell you from personal experience, reviewing more than 8000 hearing records during the discovery phase of the Meachem lawsuit and in defending numerous Article 78 proceedings, that the complaints as to the hearing process alleged by the Meachem plaintiffs were not wholly unfounded. The manner in which hearings are conducted must now conform to a more formal procedure than has been required of our hearings historically. Our hearings must be more consistent and structured. The courts are now requiring that our hearings more consistently and reliably adhere to certain hallmarks of procedural due process. This training is intended to provide you with guidelines that offer more consistency and structure, protect the due process rights of our appellants and attain the goals of well-established records and well-reasoned decisions that will withstand Article 78 challenge."
Id. at p. 2.
The CLE materials provide a detailed framework for ALJs to evaluate agency claims of mailing and appellant claims of non-receipt:
"B. When do issues related to proof of mailing arise?
"If the appellant alleges non-receipt of a mailed document, the hearing officer should explain to both parties that the agency will first be asked to provide evidence that establishes the document was properly mailed and, if mailing is established, the appellant will have a full and fair opportunity to explain why the document at issue was not received.
"1. Agency's presentation
"a. that regular office mailing procedures took place in this case in order to get the document into the possession of the US Postal Service - to establish that the document was mailed.
"To successfully establish the first presumption, the agency must show there is:
"• an established office mailing procedure, and
"The agency will attempt to do this with a mailing affidavit or through direct testimony by someone familiar with the process or with this specific mailing. The mailing affidavit must describe a regular office mailing procedure that is relevant to the document in question. The affidavit must also establish a basis, or nexus, for asserting that the document in this case followed that procedure. This can be shown by the affidavit clearly stating, for instance, that if the document follows the described mailing procedure, the file copy of the document will contain a particular marking in the upper right hand corner of the document. The agency must then show that their file copy contains that marking. Remember, we are working with presumptions. If the presumption is not established, the evidence must fail.
"a. Affidavits - Should be applicable to the mailing, current and complete.
"1) The hearing officer should evaluate whether the affidavit is appropriate for the type of document mailed. For example, does it refer to a specific kind of appointment notice. Also, the evidence presented should correspond with the process described in the affidavit (e.g., a manually-addressed letter but the affidavit describes a computer-generated letter).
"Stale-dated affidavits - agency representatives should always testify whether or not the process described in the affidavit was the process in place at the time of the mailing. This should apply whether the affidavit post-dates or pre-dates the mailing. If the affidavit pre-dates the mailing by more than a year - it should be rejected.
"b. Direct testimony - An agency representative may testify as to the agency's mailing process.
"• If the agency establishes its prima facie case, the appellant may attempt to overcome the agency's use of the presumption of regular office practice by showing, for instance, that the document was not properly addressed.
"Appellants should be afforded a full opportunity to address the alleged failure to receive the correspondence. If little information is provided, the following are a few, nonexclusive avenues of inquiry:
"• Correct address and address of record (not always the same).
"• Was a change of address timely and properly reported.
"• Was a change of address made to the residence address or mailing address and was it properly recorded.
"• Reliability of mail delivery.
"• Expectation of the mailing.
"• Does the agency have any indication in the case record of returned mail?
"Adjournments to obtain documents or witnesses - Adjournments are appropriate when there is good cause for not bringing them to the hearing (§358-5.3(a)) or 'when in the judgment of OAH or the hearing officer the parties' due process rights would best be sewed by adjourning the fair hearing, or if there are special circumstances which make proceeding with the case fundamentally unfair' (§358-5.3(b)). Typically, the need for documents or witnesses related to issues of non-receipt of mail arise for the first time at the hearing and therefore adjournments may well be appropriate.
"D. Evaluating the evidence
"1. In all cases, summarize the proof presented. What has been proven and what has not been proven. What has been rebutted and what has not been rebutted.
Id. at pp. 10-14.
In a July 19, 2011 memorandum by Daniel Bloodstein, an OAH attorney, ALJs were reminded
"of the requirements concerning mailing issues that resulted from the settlement in the case of Meachem v. Wing. Recent circumstances indicate there may be a lack of clarity on the part of some hearing officers concerning how to proceed with proof of mailing issues, including the analysis of affidavits and supporting evidence presented by the Agency."
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