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This transmittal is being released by the Office of Administrative Hearings (OAH) to document instructions for requesting a waiver of personal appearance, pursuant to 18 NYCRR 358-4.3(c)(1), by any agency against which a Fair Hearing is scheduled. An agency may be a Social Services District, Managed Care Agency, New York State Department or Office, or other entity. This Transmittal is intended to update transmittals: 95-11, 00-02, 05-09, 06-04, 06-06, 06-10, 07-05, 07-11, and 11-02.
Waiver requests will be reviewed and granted on a case-by-case basis. At this time, "blanket" waivers of appearance will not be granted with the exception of the EBT Account Adjustment Program as noted in Transmittal 06-10; however, if the agency contact does not receive a telephone call from this office prior to the hearing date indicating otherwise, it will be presumed that a waiver has been granted.
It should be noted that even in situations where a waiver of appearance has been granted, the Administrative Law Judge (ALJ) may require the testimony of the agency representative at the time of the hearing. It will, therefore, be necessary that a primary contact person be available (and a back-up contact be designated to be available) during the course of the hearing to accept a telephone call from the Administrative Law Judge. The primary and back-up contact persons' names and telephone numbers should be included on the request for waiver. The waiver request should also contain the fair hearing number, date of hearing, and a summary of the specific facts relevant to the issue under review at the hearing. A proposed format for requesting a waiver of appearance is attached as an example.
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