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Empire Justice Comments on Revised Regulations regarding Fair Hearing Defaults

March 29, 2012



Jeanine S. Behuniak
New York State Office of Temporary and Disability Assistance
50 North Pearl Street, Floor 16C
Albany, NY 12243-0001


Re: Comments on Revised Rule 18 NYCRR § 358-5.5 New York State Register, 2/29/12

Dear Ms. Behuniak:

Thank you for the opportunity to comment on the revised amendments to Title 18 of the New York Codes, Rules and Regulations (NYCRR) which appeared in the New York State Register on February 29, 2012. This revised rulemaking extends the time limit for requesting a reopening of a defaulted fair hearing to one year, adds language which may affect defaults when non-attorney representatives appear without the appellant.

We support the extended time limit for requesting the reopening of a default, and for the reasons set forth below, would suggest that there be no time limit. We are deeply concerned by the restriction the Revised Proposal places on non-attorney representatives in the fair hearing process. The proposal appears to require default if a non-attorney representative appears without the appellant. Such a proposal penalizes appellants who turn to relatives, friends and community advocates for help with their fair hearings.

These regulations were first proposed in the April 27, 2011 New York State Register. The purpose of the rule, as stated in the “Needs and Benefits” section of that issuance, is to “ensure that the due process rights of Appellants are protected’ in instances where they have good cause for not appearing at their hearing.  That version of the regulation did not have the one year time limit for presenting a good cause claim and defined abandonment to exist when “neither the Appellant nor the Appellant’s authorized representative appears at the fair hearing.”). New York State Register at 21 (Apr. 27, 2011).

I.     Comments on the Revised Rule

A.    Extending the time limit for requesting a reopening of a defaulted fair hearing.

The Empire Justice Center supports the removal of the 15-45 day time limits for requesting a reopening of a defaulted fair hearing. We are concerned about the imposition of the one-year time limit which appears in the Revised Proposal, but which was not in the April 27, 2011 proposed regulation.  The stated purpose of the original Proposal was to “[a]mend fair hearings regulations to remove the time frames within which an Appellant or an Appellant’s authorized representative must request that a defaulted hearing be rescheduled.” (emphasis added). New York State Register at 21 (Apr. 27, 2011).

Certainly it will be rare that the one-year time limit in the revised regulation will be exceeded, and the burden of proving good cause may be more difficult in such cases. The “Needs and Benefits” section of the original proposed regulation acknowledged this by indicating that

The Appellant’s time frame to contact OTDA’s Office of Administrative Hearings would be determined by the Appellant’s good cause reason, and timeliness would be a factor to be considered in such determination. New York State Register at 21 (Apr. 27, 2011).

One can imagine the situation where this could occur – for example, an individual suffers a head injury and is incapacitated, causing a long period for the request to reopen.  It should be noted that the New York Civil Practice Rules §317 and §5015(a)(1) contain a year provision for reopening a default, but case law has made clear that courts have inherent powers to vacate a default at any time in the interests of justice. Machnick Builders Ltd v. Grand Union Co., 52 A.D. 2d 655 (3rd Dep’t 1976). David Siegel in his civil practice treatise states,“…if the year has expired, the excuses for the default had best be all the more compelling.  D. Siegel, New York Practice, 5th ed. § 108, pp. 202-03 West Publishing, 2011.

The Office of Temporary and Disability Assistance does not retain inherent judicial powers beyond what is granted to it in regulation. We urge the Agency to reconsider the original proposed regulation of April 27, 2011—which eliminated all such time-limits.  A better way to protect the due process rights of appellants is to give persons an opportunity to be heard and allow hearings to be reopened where the facts suggest that justice demands it.

B.     Replacing the term “appellant’s authorized representative” with the more restrictive term “appellant’s attorney (or an employee of the attorney).

The Empire Justice Center is concerned with this revision, which will adversely affect appellants who rely on friends, family or non-attorney community advocates for assistance with their fair hearings. We understand that as a result of the decision in Varshavsky v. Perales, 202 A.D.2d 155 (1st Dept., 1994),  OTDA has adopted a policy that a non-attorney cannot be permitted to waive the right to an in-person fair hearing on behalf of a homebound appellant who is not present. It is understandable that a class member’s hard-fought right to a home hearing should not be casually waived by any representative. Presumably, a lay representative would be more likely to err than an attorney or an attorney’s employee in waiving this essential due process protection.  However, extending this concept to the regulation governing defaults is harmful to appellants. Further, as discussed in more detail on the next page, to dismiss an appeal as “abandoned” when an appellant does not appear in person, but does appear by a lay representative, violates federal food stamp regulations and fails to protect the due process rights of appellants.

The language of section 358-5.5(a) in its current form allows any “authorized representative” to appear at the fair hearing on behalf of the appellant. While the goal of the Revised Rule is to “ensure that the due process rights of appellants are protected,”[1] the revision instead results in unfairness to appellants who rely on non-attorneys during that process. Some organizations rely on written authorizations from their clients to proceed with a fair hearing in the Appellant’s absence.  Where there are no disputed facts and the issue is purely an issue of law, it is entirely appropriate for the Appellant not to appear. See FH # 5922499H (Suffolk 12/2/11).   In a system where there are not enough legal services attorneys to represent all those with meritorious cases,[2] lay advocates fulfill a critical need and should not be precluded from raising legal issues because they are not lawyers.  

Community organizations without attorneys on staff such as domestic violence shelters or CAP agencies will be faced with a default when they attend a hearing where the Appellant fails to physically appear, even if the lay advocate can present a good reason for doing so. Although only a small percentage of appellants are represented by anyone, the most recent data we have been able to obtain shows that twice as many appellants are represented by lay advocates than by attorneys. See Annual Statistical Report, New York State Department of Social Services, Bureau of Fair Hearings FH-025 (1990, 1995) (Attached as “Exhibit A”).[3]

The proposed practice of allowing only an attorney or the employee of an attorney to appear at a fair hearing without the Appellant to avoid a default contradicts the stated goal of the revised regulation to “ensure fairness in the hearing process.” The regulation that was proposed on April 17, 2011 used the phrase “appellant’s authorized representative” rather than “appellant’s attorney.” The Revised Proposal makes no reference as to why the language referring to appellant’s authorized representative was altered. Instead, the comments state that the revision is intended “to reflect current policy and practice regarding who may appear at a hearing and who may request that a defaulted hearing be reopened.” The comments do not elaborate on how this change “reflects current policy and practice,” nor do they explain why representatives may request a reopening but not represent the Appellant at a fair hearing unless the Appellant is also present. In fact, the Revised Proposal expands the class of representatives that may request an opening by eliminating the requirement that they be “authorized.”

The Revised Proposal is inconsistent with the federal regulation regarding fair hearings in food stamp cases where the regulation clearly prohibits the state agency from denying or dismissing a request for fair hearing unless “the household or its representative fails, without good cause to appear at the scheduled hearing.”  7 CFR § 273.15(j)(1)(ii) and § 273.15 (l)(2) (emphasis added). The use of the word “or” clearly means that there is no default when the representative does appear.

Many other laws and regulations give non-attorneys the same rights as lawyers when representing appellants in the fair hearing process, which underscores the impropriety of this regulation, if the intent is to treat them differently:

  • Social Services Law § 22[12][(c) : establishing right to “representation by legal counsel, or by a relative, friend, or other spokesmen” if not representing oneself;
  • 18 NYCRR § 358-3.4(e) - establishing right to be “represented by an attorney or other representative;”
  • 18 NYCRR § 358-3.7(a)(1) - establishing right to examine the contents of case record and all other documents or records used by the agency at a fair hearing by an “authorized representative;”
  • 18 NYCRR § 358-3.9 - establishing the need for a written authorization to have an non-attorney or other organization represent an individual at a conference, fair hearing, or to review the case record;
  • 18 NYCRR § 358-5.1(b)(1) and (4) – a  fair hearing notice shall include the appellant’s right to be represented at the fair hearing by “legal counsel, a relative, friend or other person” if not representing his or herself;
  • 7 CFR § 273.15 (o) - hearings may be attended by friends or relatives;
  • 7 CFR § 273.15(p) - household and “representative” must be given adequate opportunity to prepare and present case;
  • 42 CFR § 431.206(b)(3) -the agency must inform applicant that he or she can represent him or herself, or use legal counsel, a relative, a friend, or other spokesman;
  • 42 CFR § 431.242 -the applicant or “representative” must be given opportunity to examine case file and other documents and records and bring witnesses and present case);
  • 7 CFR § 273.15(d)(1) - agency conferences may be attended by household or “representative;”
  • 7 CFR § 273.15(e) - right of household or “representative” to present case at consolidated hearing;
  • 7 CFR § 273.15(f) -  at the time of application, each household shall be informed of right to fair hearing and that it may represent itself or use a “representative,” such as legal counsel, relative, friend, or other spokesperson;
  • 7 CFR § 273.15(h) – the household or its “representative” may request a fair hearing;
  • 7 CFR § 273.15(i)(1) – the state agency must provide the household or its “representative” with materials necessary to determine if a fair hearing should be requested or to prepare for the fair hearing;
  • 7 CFR § 273.15(j)(1)(iii) and (iv) - a fair hearing may be dismissed if the household or its “representative” withdraws;
  • 7 CFR § 273.15(l)(4) – a household or its “representative” may examine the case file prior to the hearing;
  • 7 CFR § 273.15(q)(1) - the record of hearing decision shall be available to the household or its “representative” for copying and inspection;
  • 42 CFR § 431.201 - defining “request for a hearing” which can be made by applicant or “his authorized representative;”
  • 42 CFR § 431.222(d)  -  the right to present case on one’s own or through an “authorized representative;”
  • 42 CFR § 431.242 – the right of applicant or his “representative” to examine case file and all other documents and records used by the agency;
  • 18 NYCRR § 358-2.2(a)(10)  -adequate notice must set forth the right to representation by “legal counsel, a relative, friend or other person” if not representing oneself;
  • 18 NYCRR § 358-3.7(a)(3) - extracts of a case file secured by the Commission for the Visually Handicapped or by a local rehabilitation agency may be furnished to an applicant or his “authorized representative” under certain circumstances;
  • 18 NYCRR § 358-4.3(a) -  agency must furnish copies of documentary evidence to appellant or his “authorized representative;”
  • 18 NYCRR § 358-5.4(a) - a hearing request is withdrawn when appellant or his “authorized representative” files a written request or orally requests such withdrawal at the hearing;
  • 18 NYCRR § 358-5.10(b)(1)  - individuals whose cases have been consolidated have the right to present one’s case or to present through a “representative.”

To conclude, the Empire Justice Center supports the expansion the time limit for requesting a reopening of a defaulted fair hearing to one year. However, we urge OTDA to remove the time limit entirely as proposed in the April 27, 2011 rulemaking, and to clarify the regulation so that the case is not placed in default status if a non-attorney representative appears without the appellant he or she represents at a fair hearing.

Thank you again for the opportunity to comment on the Revised Proposal.

Very truly yours,


Roman Griffith
Staff Attorney



Susan C. Antos
Senior Staff Attorney



[1] New York State Register at 22 (Feb. 29, 2012).

[2] See The Task Force to Expand Access to Civil Legal Services in New York: Report to the Chief Judge of the State of New York at 29 (Nov. 2010) (“Since January 2010, 91 percent of the [legal services] provider responses reported increases in requests for assistance from formerly moderate-income households; 90 percent reported increases in unemployed individuals seeking assistance.” Just when the need for civil legal assistance is increasing, the Task Force’s survey also found that 57.7 percent of the provider responses reported staffing reductions because of budget cuts.”).

[3]  On July 9, 1998, the Empire Justice Center was advised by letter by Mark Lahey, then the Director of Administration at the Office of Administrative Hearings at the Office of Temporary and Disability Assistance, that the FH-025 report which showed the numbers of individuals represented by counsel at fair hearings was no longer being produced.


Supporting Documents:

FH 025 9-30-90

FH 025 9-30-95