ONLINE RESOURCES by WNYLC & Empire Justice Center

Given the volume of notices sent by local social services agencies, and the shared living arrangements, substandard housing and frequent relocation of low-income New Yorkers, it should come as no surprise that there are frequent disputes over the actual receipt of mailed notices and other correspondence.

In the context of Fair Hearings, these disputes usually involve appellants' failure to comply with some agency demand or their failure to request a hearing within the various 10, 30, 60, 90 and 105 day time limits. See Social Services Law §§ 22[4] and 332-b[6]; 18 NYCRR § 358-3.5(b).

As a result of the settlement of Meachem v Wing, 99 Civ. 4630 (S.D.N.Y. April 20, 2005) [available at: http://onlineresources.wnylc.net/FairHearingResources/docs/meachem_settlement.pdf], the New York State Office of Temporary and Disability Assistance (OTDA) has undertaken efforts to train Administrative Law Judges (ALJs) [also known as Hearing Officers] on how to handle Fair Hearings involving appellants' claims of non-receipt of notices.

The ALJs' training materials are available at: http://onlineresources.wnylc.net/FairHearingResources/showquestion.asp?faq=6&fldAuto=134. As explained in those materials, "The question of whether or not an agency mailed a significant piece of correspondence and the question of whether or not an appellant received a significant piece of correspondence cause proof of mailing issues to arise." Id. at p. 10.

These training materials provide the following directions as to how an ALJ (Hearing Officer) should handle "mailing issues" at Fair Hearings:

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.

C. How is proof of mailing established?

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

When the appellant raises the non-receipt of a document concerning which the failure to respond is the basis for the agency's notice, the agency must present proof of mailing of the document and receipt by the appellant. In order to establish receipt by the appellant of the subject document, the agency will typically rely on two evidentiary presumptions:

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.

b. the regularity of the US Mail - to establish that the document was received.

To successfully establish the first presumption, the agency must show there is:

• an established office mailing procedure, and

• that the procedure was followed in this particular case.

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 comer 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).

2) Is the affidavit current and reliable?

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.

3) Is the affidavit complete? Is the complete mailing process described?

Examine the affidavit to confirm that it establishes to your satisfaction the regular office mailing procedure for the type of mailing at issue. If there is a deficiency in the agency's affidavit, ask the agency's representative to comment on your concern. For example, the affidavit refers to the mailing of a document not in issue or the affidavit refers to a nexus that has not been established by the agency's representative.

b. Direct testimony -- An agency representative may testify as to the agency's mailing process.

c. Client Notice System mailings. If CNS notices are the subject of a claim of non-receipt, the agency MUST present affidavits from OTDA's Division of Information Technology. That operation is responsible for mailing CNS notices and therefore prepares the affidavit concerning mailing of those notices but [the New York City Human Resources Administration (HRA)] is responsible for the submission at the hearing.

2. Appellant's rebuttal

If there is some question as to whether or not the agency has established mailing of the essential correspondence, the ALJ should probe and question sufficiently to establish a record that would support a finding that either the presumption was established or that it was not established.

If the agency fails to establish mailing and receipt, their case fails. However, because our hearing officers are not authorized to make final determinations at the hearing, we must still at this point turn to the appellant as if the agency established mailing and receipt to obtain the appellant's cross exam and direct case.

If the agency establishes the presumption of mailing and receipt to the ALJ's satisfaction, the burden of going forward shifts to the appellant. It is recommended that an ALJ wait for the agency to complete its presentation.

• 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.

• Also, the appellant may attempt to overcome the presumption of the regular delivery of the US mail by showing, for instance, that his/her mailbox was broken or that he/she filed a complaint of non-delivery with the [United States Postal Service (USPS)], etc...

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 [the Office of Administrative Hearings (OAH)] or the hearing officer the parties' due process rights would best be served 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

Initially, the ALJ must decide if the presumption of receipt has been established. If not, the agency has not established a necessary element of its case. If the presumption of receipt is established, then the ALJ must next evaluate whether the appellant's explanation successfully rebuts the presumption. Is the explanation plausible and believable? Did the appellant testify in a credible manner? What are those facts established at the hearing that support a finding that the correspondence was not received? The rationale relied upon to find either in favor of receipt of mail or non-receipt of mail should be clearly articulated in the "DISCUSSION" section of the [Decision After Fair Hearing (DAFH)]. The future need to engage in this exercise should be kept in mind by the ALJ as the hearing is being held. Thus, be certain that before closing the hearing, your record is as well developed as the circumstances permit.

Credibility calls are not just applicable to hearing appellants. Witnesses or written statements must also be examined for credibility. For example, agency representatives may make unclear assertions related to the (sic) their interactions with the appellant. Conflicting information may surface within agency documentation. In any instance in which the credibility of an account arises as a concern, the ALJ has the responsibility to develop the record sufficiently in order to make a well-reasoned judgment as to what are the supported facts of the case.

After allowing the witness to provide her/his account, consider its believability and compare it to other independent evidence presented. Be a proactive fact finder. If something does not make sense to you, say so and seek clarification. If conflicting statements have been made or inconsistent accounts exist, actively seek an explanation from hearing participants. If a party says it needs additional time to provide the information you seek, afford that additional time to the party (emphasis in the original).

Id. at pp. 10-13.

The following Fair Hearing Decisions have concluded that appellants did not receive the disputed mailings. For ease of use, all of the mailed items are referred to as "notices." All of these decisions are or will soon be available from the Online Resource Center's Fair Hearing Bank.

Access to the Fair Hearing Bank requires registration [http://onlineresources.wnylc.net/register.asp?index=Register] and log in at: http://onlineresources.wnylc.net/welcome.asp.

The Agency Failed to Establish by Substantial Evidence that Its Notice Was Properly Addressed, Posted and Mailed to the Appellant:	FH #:
The Agency Failed to Produce a Copy of:	-----------
• the Hand-Addressed Envelope in Which the Notice Was Allegedly Mailed:	3512116K
• the Notice That Was Allegedly Mailed to the Appellant:	1846752N 2750629J 3995222H
• the Notice That Contained the Bar Coding Referred to in the Agency's Affidavits:	4987357Z
The Agency Failed to Present Sufficient Evidence to Establish:	-----------
• that the Notice Was Mailed to the Appellant:	2191623M 2196421Y 3512116K 3825647Z 4208584N 4450135P 4506894Y 4585220J 4638065K 4916663L 5142356R
• the Address to Which the Notice Was Mailed, How It Was Mailed or When It Was Mailed:	1918944M 2191623M 2196421Y 3827079K 3998021M 4101031H 4230521Q 4408924K 4438237Z 4635101Q
• that the Agency Followed an Established Practice in Mailing the Notice:	2527827M 3521896L 3948887P 3995222H 4635101Q
• that the Agency Following Its Established Mailing Procedures:	4230521Q 4358685Z 4506226R
• that the State's Client Notice System (CNS) Has an Established Record of Meeting Notification Requirements:	4984608J
• a Nexus Between the Agency's Affidavit of Mailing and the Notice in Question:	4972591P
• Whether the Notice Was Mailed by a Vendor Despite Reference in the Agency's Affidavit that on Extremely Rare Occurrences a Vendor Mails Notices:	4987357Z
• that the Notice Was Handed to the Appellant:	4916663L 5012431N
The Agency Failed to Present:	-----------
• Testimony from Agency Staff with Personal Knowledge of Mailing:	2527827M 3948887P
• an Annotated Comment Sheet from the Case Record to Corroborate that Notice Was Mailed to the Appellant:	4140354Q
The Evidence Established that:	-----------
• the Agency's Handwritten Notice Was Partially Illegible:	1899778Z 4604458Z
• the Notice Was Not Mailed to the Appellant's Correct, Current Address But Was Instead Mailed to:	-----------
○ the Address of the Proposed Housing to Which the Appellant Planned to Move:	4210017Q
○ the Appellant's Former, Not Current Address:	2081007M 3976629P
○ the Wrong Address:	3744382L
○ the Wrong Street Address:	3811910K
○ the Misspelled Street Address:	4156583J
○ the Wrong Borough:	3070472Q
The Agency's Affidavit of Mailing Was Insufficient Because:	-----------
• the Affidavit Did Not Identify the Affiant:	4978140J
• the Affidavit of HRA's Meyer Elbaz:	-----------
○ Did Not Pertain to the Mailing of Notices of Intent:	4019991P
○ Was More Than One Year Old, Making It Stale and Not Valid Evidence Concerning the Agency’s Current Mailing Practices:	5012431N
• Affidavit of HRA's Monica Johnson:	-----------
○ Predated the Notice of Intent at Issue:	4019991P
○ Was More Than One Year Old, Making It Stale and Not Valid Evidence Concerning the Agency’s Current Mailing Practices:	5012431N

Appellant's Claim of Non-Receipt of the Notice Was Supported by the:	-----------
Agency's Records Confirming:	-----------
• the Appellant's History of Problems with Mail Delivery:	3712336Z 3780032K
• the Mail Delivery Problems Experienced by Other Tenants of the Appellant's Landlord:	4833248J
• that the Appellant's Correctly Addressed Public Assistance (PA) Check Was Returned as Undelivered:	1846752N
• that the Original Notice Was Still in Appellant's Case Record:	4358685Z
• the Appellant's Relocation to a New Address:	3976629P
Appellant's Conduct:	-----------
• Appellant's Delayed Request for the Fair Hearing:	2527827M
• Appellant's History of Compliance with Agency Requests:	3974403L 3976010M
Appellant's Credible Testimony:	-----------
• of Repeated Break-Ins to Her Mailbox:	3462886Q
• of Complaints to the USPS:	2141944J
• of Confusion over the Correct Zip Code for the Appellant's Address:	1846752N
• a History of Late or No Delivery of Mail to the Appellant's Building:	3054674Y
• of Moving to a New Address and of Reporting Her Change of Address to the Hospital Where She Initially Applied for Medical Assistance (MA):	4125861K
• of Problems with Mail Delivery:	2014059K 2141944J 3546270J 3976010M 4140354Q
• of the Landlord's Complaint to the USPS About Mail Delivery Problems:	4140354Q
• of Problems with Delivery of Mail When Several Temporary Employees Were Hired by USPS to Deliver Mail:	4647997J
• of Problems with Receipt of Mail due to Disputes with Landlord:	1902733P 3952733L
• of Problems with Receipt of Mail due to Two Streets in the Appellant's Neighborhood Having the Same Name (East/West Designation Was Missing from Street Signs):	4260073L
• of Problems with Receipt of Mail Delivered to a Common Mailbox Shared by All Residents in the Dwelling:	1942470J 2740601N
• of Problems with Receipt of Mail at a Homeless Shelter Where All Residents Had Access to a Common Mailbox:	5104267K
• of Problems with Receipt of Mail at a Temporary Housing Facility, Where Mail for Homeless Families Was Tacked on a Bulletin Board:	4348506P
• of Problems with Receipt of Mail at a Temporary Housing Facility, Where Mail for Homeless Families Was Left in a Common Area Accessible to All	4380121Q
• of Problems with Receipt of Mail at a Temporary Housing Facility, Where Co-Residents Were Involved in the Distribution of Mail:	4498612P
• of Problems with Receipt of Mail Delivered to a Locked Mailbox for Which the Appellant's Roommate Possessed the Only Key:	4744347K
• of Public Access to the Appellant's Unlocked Mailbox in the Unlocked Apartment Building:	2376229Q
• of the Appellant Staying Intermittently with Various Friends, and at Various Motels and Shelters Because of His Homelessness:	3897139L
• of the Appellant Staying Intermittently with Relatives Because of Problems at the Temporary Housing Family Where the Appellant Was Placed	4380121Q
• that the Appellant Lost the Key to the Locked Mailbox and the Landlord Refused to Provide the Appellant with a New Key:	4892301Y
• that the Appellant's Children Picked Up the Mail and Tossed It Between Magazines, Which Caused the Seriously Ill Appellant to Discover the Notice After the Appointment Date:	4856543R
• that Due to the Lack of a Residential Mailbox, the Appellant's Mail Was Forwarded to the Landlord, Who Was Uncooperative:	4833248J
• that Landlord Was Not Aware that the Appellant Was Residing in the Building as a Sub-Tenant:	4139844M
• that Mail for Other Families in the Neighborhood Was Occasionally Delivered to the Appellant's Mailbox:	4531276J
• that Mail Was Often Erroneously Misdirected by Postal Workers to Another Tenant's Mailbox in the Apartment House Where the Appellant Lived:	4786199H
• that the Appellants' Mailbox Was Knocked Over by a Plow After a Snow Storm:	2818437N
• that Mail Was Collected, Sorted and Distributed by the Landlord:	4139844M 4144127Q 4438237Z 4733460N
• that Mail Was Delivered to a Locked Mailbox to Which Only the Landlord Had Access:	3800365P 3914371R
• that Mail Was Delivered to a Central Repository to Which the Appellant and Multiple Co-Residents Had Access:	3712979N 4079608M 4101031H
• that Mail Was Received by the Landlord's Family in Whose Private House the Appellant's Room Was Located:	4916544N
• that the Appellant Resides in a New York City Housing Authority (NYCHA) Project Where Mail Delivery Is Poor:	4929290K
• Was Clear and Consistent	1905263P
• Was Consistent As to Detail, Documented in Part by Agency Records, and Persuasive:	4744817H
• Was Plausible and Persuasive:	1899778Z 2014059K 3548378Q 3761428H 3803979K 4604458Z 4721309R
• Was Unrefuted	4341956K
• Was Sincere and Genuine:	4720847R
Credible Testimony of the:	-----------
• Appellant's Attorney Who Had Written to the Landlord about a Threatened Eviction:	1902733P
• Appellant's Brother-in-Law that He Collected the Appellant's Mail and Misplaced the Notice:	3492029J
• Appellant's Case Manager Who Requested that Notices for the Appellant Be Sent in Care of the Case Manager Because of the Appellant's Problems with Receipt of Mail:	3462886Q
• Appellant's Co-Tenant As to the Abusive, Deliberate Behavior of the Landlord in Distributing Mail to Residents of the House:	3770956J
• Appellant's Co-Tenant Who Reported Missing Mail:	3712979N
• Appellant's Intensive Case Manager Whom the Appellant Always Called When the Appellant Received Notices:	3548378Q
• Appellant's Landlord Who Collects the Mail at the Dwelling Shared with the Appellant and Who Did Not Recall Receiving the Notice or Giving It to the Appellant:	4653435N
• Appellant's Mother Who Assumed Responsibility for Opening and Reviewing All Mail from the Agency to Ensure that Her Son Kept His Appointments:	5112113N
• Appellant's Representative Who Confirmed USPS's Current Investigation of Appellant's Mail Delivery Complaints:	2141944J
• Appellant's Significant Other Who Resided with the Appellant:	4531276J
• Appellant's Son, Who Was 18 Years of Age:	4604458Z
Verification from the:	-----------
• Appellant's Co-Residents of a History of Late or No Delivery of Mail to Their Building:	3054674Y
• Appellant's Landlord as to the Borough in Which the Appellant Lived:	3070472Q
• Appellant's Landlord that He Was Late in Giving the Appellant the Delivered Notice	3914371R
• Manager of the Appellant's Temporary Housing Site:	4144127Q 4498612P
• Neighbor to Whom the Notice Was Erroneously Delivered:	3995222H
• Police that a Co-Resident of the Appellant Had Reported that Mail Was Being Stolen:	4485016P
• USPS:	2750629J 3462886Q 3546270J 4260073L

Blue text indicates new additions since May 18, 2009.