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Fair Hearing Update

August 18, 2011

Author: Susan C. Antos

The last year has seen a number of technological changes in the world of fair hearing advocacy.  This article discusses the Office of Temporary and Disability Assistance (OTDA) Fair Hearing Archive with particular attention to its benefits and challenges; the Fair Hearing Evidence Management System (FHEMS) and the Electronic Evidence Packet System (EEPS) which are currently being piloted in New York City; and the likely use of videoconferencing of fair hearings in the future.  The update concludes with a short summary of a decision and order in a case called Shakhnes v. Doar, which promises to assist those challenging denials of home care through the fair hearing process, and which the state is inappropriately using to deny requests for adjournments.

The OTDA Fair Hearing Archive

In order to be well prepared for a fair hearing, it is important that advocates know if the OTDA Assistance has ruled on the issue faced by their client.  This is because the principle of administrative stare decisis requires that an administrative hearing decision conform to agency precedent unless the agency can distinguish the subsequent case on the facts or law.  Matter of Field Delivery Serv., 66 N.Y. 2d 516, 520 (1985).  For this reason, Empire Justice Center and Western New York Law Center have maintained an online data base of fair hearing decisions. This Fair Hearing Bank is free for all to use at: http://tinyurl.com/yqtjg9

This year, OTDA began posting redacted fair hearing decisions to its website in searchable format at http://otda.ny.gov/oah/FHArchive.asp . OTDA calls the site the Fair Hearing Archive, and it contains all OTDA administrative hearings retroactive to November 1, 2010. This new site should assist advocates searching for fair hearing precedents. However, because OTDA issues thousands of fair hearings decisions each month, the task of finding hearings is sometimes complicated.

►    Sheer volume: Because OTDA issues thousands of fair hearing decisions every month, even a refined search can result in hundreds of hits to sort through.  As we all become more familiar with this new database, Empire Justice Center will be looking for ways to share what we learn to make our searches more effective. Additionally, Empire Justice Center is working with Western New York Law Center and Gene Doyle, Director, of People Organized for Our Rights (P.O.O.R.), to explore technologies that will help in this endeavor. Empire Justice Center hopes to convene a meeting of advocates this fall to discuss strategies to improve our searches of the archive.

►    The hearing decisions do not identify the administrative law judge.  OTDA’s counsel’s office has advised us that they redact this information because of Executive Law §131, which prohibits OTDA from monitoring the decisions of Administrative Law Judges. The intent of this law is to insulate ALJs from political pressure based upon decisions that they make.  We have been advised by counsel’s office at OTDA that Administrative Law Judges have objected to their names being listed in the hearings in the Archive on the basis that it is monitoring in violation of Executive Law §131.

►    The hearing decisions do not list the name of the attorney or advocate representing the Appellant.  OTDA has advised the Legal Services Advisory Committee that they will correct this.

►    The Fair Hearing Archive is included in all searches of the OTDA website: This means that the results of a search for an ADM or other policy document can be cluttered with fair hearing decisions.  See “Tips for Searching the OTDA Website,” on page 20 of this issue of the Legal Services Journal for ideas on avoiding an avalanche of Fair Hearings when you are looking for something else.

The Fair Hearing Evidence Management System (FHEMS) and The Electronic Evidence Packet System (EEPS)

New York City is piloting two electronic evidence management systems that work together to significantly change the fair hearing process. The Fair Hearing Evidence Management System (FHEMS) is web based and involves the electronic assembly of fair hearing packets. The companion system, the Electronic Evidence Packet System (EEPS), requires that evidence at fair hearings be viewed and introduced electronically. There are four centers in New York City participating in this pilot. At a demonstration of this pilot offered to members of the Legal Services Advisory Committee, New York City HRA stated that the impetus for the development of this system is, that for non-electronic evidence cases, the three packets produced for each hearing result in 60,000 pages of paper copied per day, or nearly two million pages per month. 

Here are some features of the system:

  • Agency packet is assembled by a computer! –The Agency’s evidence packet is assembled automatically and electronically by a computer, based on issue codes. The computer assembles the packet, which is manually reviewed and approved by a supervisor. The computer reaches into the following electronic databases to assemble the packet:  WMS (State Welfare Management System), STARS (Substance Abuse Tracking and Reporting System), WECARE (Wellness, Comprehensive, Assessment, Rehabilitation and Employment System), NYCWAY, and WEBCOINS (State Client HRA Image Repository) FHEMS cannot reach into ACCIS (New York City Childcare) or the POS (Paperless Office System).
  • The inability of the parties to access POS means that relevant evidence in the Agency file, such as certain worker’s case notes, will not be available at the hearing. Although the Agency may attempt to replicate the information that goes into POS elsewhere in the system (for example, a client brings a document to the Agency; the act of bringing the document in is noted in POS; and the document itself is scanned and incorporated into the client's "One Viewer" document index). The One Viewer would indicate that the document was in the file, but if the issue was when the Appellant submitted the document, that information would likely be in POS and not accessible.
  • The hearing is held in a room with three computer monitors:  The room in which the fair hearing is held has one computer system with three connected computer monitors.  One monitor faces the agency representative, one monitor belongs to the Administrative Law Judge and the third monitor faces the Appellant. The agency representative has the ability to go into the document data bases listed above to get other electronic documents that are not in the packet should they become relevant at the hearing.
  • The presentation of the Agency’s case is entirely electronic: The Agency representative introduces each document one by one for acceptance into evidence to the Administrative Law Judge, by clicking on a field on the Agency screen.  Once the document has been accepted by the Administrative Law Judge (ALJ), it appears on the Appellant’s screen.
  • The Appellant has no control over what he sees on his or her screen:  The ALJ has control of the Appellant’s screen, which in technical terms is referred to as a “slaved” screen.  This slaved screen means that the Appellant can only see what the ALJ sees, so that in order to view the documents that have been introduced into the record the Appellant has to ask the Administrative Law Judge to scroll through the documents and bring up the document on the ALJ’s screen so that the Appellant can also view it.  During our walk through, OTDA conceded that allowing the Appellant to look at documents independently would be ideal but is beyond their present capacity.  Having a second screen with independent ability to view would require another computer or a complicated hook–up: two machines in one. 
  • Paper copies come too late:  In the current pilot, an Appellant who asks for paper copies of the documents in evidence is not given them until the close of the hearing. This makes it more difficult for an Appellant to find, for instance, a page in a multi-page document that might contradict the very page cited to by the Agency, which would be the page that the ALJ would be reviewing.

Advocates who would like a walk-through of the FEHMS/EEPS system, should contact Ken Stephens at Legal Aid in New York City, KStephens@legal-aid.org,a member of the Legal Service Advisory Committee, who is coordinating visits to the demonstration sites.

Legislation would have made EEPS a County Option

New York State came very close this year to having a law that would have given all local social services districts the option to introduce evidence at fair hearings solely electronically. This bill was not only introduced in both houses of the New York State legislature [S.4828 (Gallivan)/A.8087(Titus)], but was passed by the Senate and made it to third reading in the Assembly.

Empire Justice expects to work with the sponsors of this legislation next year to assure that if such a bill becomes law, it is accompanied by a number of due process protections, such as providing a” check box” opportunity to request an evidence packet, assuring that all Appellants have the opportunity to receive a paper packet of evidence before the hearing and assuring that Appellants, who agree to the receipt of electronic evidence, have the ability to review all documents in the record during the hearing.  As we move into this new world of electronic evidence, computer screens and videoconferencing fair hearings (see below), we will urge the legislature and OTDA to be guided by the holding in Goldberg v. Kelly, 397 U.S. 254, 269 (1970), that “[t]he opportunity to be heard must be tailored to the capacities and circumstance of those who are to be heard.” Anyone interested in working with the Empire Justice Center on this issue should contact Susan Antos at santos@empirejustice.org.

Fair Hearings by Videoconference

As a result of a settlement in a case called Finch v. OCFS (S.D.N.Y., 04-CV-1668), which imposes case processing times on fair hearings involving State Central Register (SCR) child abuse and maltreatment reports issued by the Office of Children and Family Services (OCFS), the state has purchased the technology which will allow it to conduct fair hearings by videoconference. 1  The Finch case was a class action which challenged a number of improprieties that resulted from delays in the SCR clearance process, particularly when individuals sought a fair hearing to amend their SCR reports. In order to comply with the new processing deadlines, OCFS purchased videoconferencing equipment and shared both the purchase and the cost with OTDA. When operational, all sites will be equipped with scanners for the exchange of evidence.

OTDA intends to begin using the equipment in rural areas at a date still to be determined. We will keep you advised of new developments on the benefits list serve as we learn them.

Shakhnes v. Doar

Shakhnes v. Doar, a class action brought by the New York Legal Assistance Group and SNR Denton, addressed the systemic problem of long delays in the home care fair hearing process.  The case sought to ensure the provision of final administrative action within 90 days for Medicaid-funded home care applicants and recipients (i.e. 90 days from date of request for fair hearing through the date of compliance with the Decision After Fair Hearing).  Last September, Judge Richard Holwell of the SDNY, issued a decision certifying a class of Medicaid-funded home health care applicants and recipients and awarding summary judgment to Plaintiffs against the New York State Department of Health and the Office of Temporary and Disability Assistance, finding that they systemically violated the Medicaid Act by failing to provide final administrative action within 90 days of requests for hearings. Shakhnes ex rel. Shakhnes v. Eggleston, 740 F.Supp.2d 602 (2010).  In April 2011, Judge Holwell issued a Permanent Injunction setting out specific requirements for State Defendants’ compliance with the 90-day rule.

The order in Shakhnes allows State Defendants to toll the 90-day time frame for adjournments requested by the Appellant or Appellant’s counsel; however, OTDA has been denying requests for adjournments from Appellants, even when necessary to obtain counsel or review the case record, and from counsel who have conflicts on the date of a fair hearing, in response to the Shakhnes decision.  Shakhnes counsel are currently making efforts to address this new problem and have asked to be notified of instances in which individuals are harmed as a result of the policy. Contact Jennifer Magida (jmagida@nylag.org), Ben Taylor (btaylor@nylag.org) or Jane Stevens (jstevens@nylag.org).  The order in Shakhnes is in the Benefits Law Data base, at http://onlineresources.wnylc.net/welcome.asp?index=Welcome

Endnote

1   The Finch complaint and settlement documents can be found in the Benefits Law Database of the Online Resource Center at  http://onlineresources.wnylc.net/welcome.asp?index=Welcome

 





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