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Attached Document:
hanks__05-01-91_memo__18_nycrr_part_358_.pdf
Documents : Case Record Production at Fair Hearings
May 1, 1991 Memo to ALJs from Russell J. Hanks (Policy Clarifications: Failure to Provide Case Files at Hearings)
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This memorandum sets forth Office of Administrative Hearings (OAH) policy with respect to social services districts' failures to comply with 18 NYCRR Part 358.
Under the heading, "Failure to Provide Case Files at Hearings," at p. 3, Acting Deputy Counsel for Fair Hearings Russell J. Hanks states that
"18 NYCRR Section 358-4.3 requires that 'a representative of the social services agency must appear at the hearing along with the case record.' Violations of Section 358-4.3 not only compromise appellants' due process rights, they also frequently impede the hearing officer's ability to develop a full record and make specific directives.
"In New York City, for public assistance and medical assistance cases arising out of notices of intent, settlements in two federal lawsuits (Rodriguez and Annunziata) require the Human Resources Administration (HRA) to withdraw the underlying notices whenever complete, relevant and legible case records are not available at hearings. For all other situations in New York City and for all hearings outside of New York City, the following guidelines apply:
"For violations of 18 NYCRR Section 358-4.3, a recess or adjournment may be provided to enable the district to obtain the case record and the appellant to review it. This approach is only appropriate when there is a strong expectation that the district will obtain the case record and that the appellant will not be harmed by the delay. Multiple adjournments are not justifiable for this purpose. When the relevant case file materials are available, the hearing officer must ensure that the social services district provides the appellant or the appellant's representative with copies of the documentary evidence upon which it intends to rely, as required by 18 NYCRR Section 358-4.3 (a).
"When a recess or adjournment is not appropriate (e.g., emergency assistance issues, certain non-aid-continuing cases), the hearing officer must elicit the appellant's testimony and other evidence and, to the extent possible, make specific directives in the decision. The hearing officer must rely on the appellant's credible testimony and direct specific relief consistent with this evidence. In those cases in which it is necessary to remand to the social services district for reconsideration or other action, the hearing officer must direct the district to act within a limited, specified time period (e.g., recompute eligibility and send appropriate notice within 10 days)."
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Created: 5/30/2008
Updated: 5/31/2008
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