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This amends and replaces OAH Internal Procedures Transmittal 11-003 (DRAFT) dated June 17, 2011. Amendments appear in bold type.
Pursuant to the court order in Fishman v. Daines, upon the default of any hearing (statewide) involving a Medicaid-only case, the Office of Administrative Hearings (OAH) will generate a letter entitled Fishman Default Letter (FHIS Letter 16) to the appellant and any representative listed in the Fair Hearing Information System (FHIS). The letter will be dated on the date of mailing, roughly two business days after the default is entered in FHIS. FHIS comments will be updated automatically with the insertion of the following language: "Letter 16 Fishman Default Letter sent (mm/dd/yyyy)." A copy of Letter 16 is attached.
The Fishman Letter will instruct clients who wish to have their hearing rescheduled to return the letter by U. S. Mail only within 10 days of the date of the letter. All information contained in the Fishman Letter appears in Spanish on the reverse side of the letter. Designated staff will review all replies received by mail.
If the response is postmarked within ten days of the mailing of the Fishman Letter, the hearing will be reopened using new Disposition REOP 93, FISHMAN DEFAULT WITHIN 10 DAYS. If there are issues other than the MA-only issue, the other issue(s) should be bifurcated and scheduled separately. The scheduling status will be entered as "N' for scheduling on the next available calendar. The aid status will either remain non-aid to continue or be changed to non-aid to continue. Communication Intake Unit (CIU) staff will not review whether the appellant had good cause to default the hearing; that determination and the determination whether or not to restore aid-to-continue will be made by the Administrative Law Judge at the next scheduled date, as appropriate.
If the appellant is seeking to have the hearing rescheduled but mails/postmarks the response more than ten days after the inailing of Letter 16, CIU staff will not reopen the hearing but will process a "reopen denial," using new Disposition RPDN 94, FISHMAN DEFAULT OVER 10 DAYS. As with all RPDN dispositions, a new hearing request will be processed, using the date of contact as the new request date.
If the appellant contacts OAH by means other than mailing, the procedures indicated below will be followed:
In-person returns: The letter should be manually date stamped and processed by designated staff. If the appellant does not have the letter. they should be instructed to mail in the letter within ten days. Alternatively, CIU staff can print out the Fishman Letter and have the appellant sign it in person. Staff at the 14 Boerum Place office should date stamp and forward any letters to the Albany office in a separate envelope marked "Fishman."
Telephone: Explain to the caller that the letter must be returned to enable review by desighated staff. Circumstances may fall into one of the following categories and should be handled accordingly:
If the caller has the Fishman letter, regardless of when they are calling, they should be instructed to return the letter by mail as directed in the letter. (CIU staff should be aware that the letter indicates it should be returned by mail within ten days of the default.)
If the letter was not received, misplaced, or discarded, phone staff should give a printout to a designated Fishman staff member after noting the circumstances in FHIS. If the appellant's address is incorrect in FHIS, it should be corrected and noted on the printout. Designated staff will process the appropriate transactions.
If fewer than 10 days have passed since the default and the client does not have the letter, the appellant may go to 14 Boerum Place to request a copy of the letter, which they may then submit to staff on site.
Fax and E-Requests: Designated staff will enter in FIllS new Disposition RPDN 92, FISHMAN-DID NOT FOLLOW REQUIREMENTS.
Any letters returned by the US. Postal Service as undeliverable will be forwarded to designated CIU staff who will note the circumstances in FHIS. If the letter was mailed to the incorrect address by fault of OAH, a copy of the letter will be sent to the appellant's correct address and any listed representative.
Staff should not include any other issues on these reopened or reopen/denied hearings. Other requested issues can be processed as a separate hearing(s) and "scheduled with" the Fishman Reopen. However, it is important that the Administrative Law Judge issue separate decisions after hearing rather than combining all issues into one decision.
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