16 Del. Admin. Code § 5000-5600

Current through Register Vol. 28, No. 7, January 1, 2025

Section 5000-5600 - Admitting Hearsay Evidence

Federal Rule of Evidence 803, Delaware Uniform Rules of Evidence

This policy applies to applicants and recipients for any public assistance program administered by the Division of Social Services or the Division of Medicaid & Medical Assistance.

1.The Hearing Officer Decides if Hearsay Evidence is Admissible

Admissible hearsay evidence includes:

A. Statements where the claimant has had an opportunity to cross examine the witness at a prior proceeding

B. Statements of agency staff who could be available as witnesses upon a claimant's request

C. Evidence which falls within recognized hearing exceptions where cross-examination of the witness would not be meaningful

D. Official records of the Department of Health and Social Services and other official records when authenticated by a custodian of the record

E. Evidence recognized by official notice as an exception to the hearsay rule (see DSSM 5603)

Exception: Recognized exceptions to the hearsay rule include: 1. Statements for purposes of medical diagnosis 2. Records of regularly conducted activity (such as Employment and Training logs) 3. Records of vital statistics 4. Records of religious organizations 5. Records of or statements in documents affecting an interest in property See Delaware Uniform Rules of Evidence §803 for more exceptions.

2.Hearsay Evidence is Not Admissible if There is an Objection

If a party to the hearing objects to the use of hearsay evidence, the evidence will not be admitted.

Exception: Hearsay evidence is admissible, regardless of objections, if it meets one of the exceptions to the hearsay rule listed in the Delaware Uniform Rules of Evidence.

15 DE Reg. 1343 (03/01/12)

5600.1 Admitting Evidence

45 CFR 205.10(14)

This policy applies to applicants and recipients for any public assistance program administered by the Division of Social Services or the Division of Medicaid & Medical Assistance.

1.Hearing Officer Determines if Evidence is Admissible

Evidence must meet the following minimum criteria to be admissible.

A. Relevance - In order for evidence to be admissible in a fair hearing it must be relevant. Evidence is relevant if an average person believes that the evidence makes a significant fact more probable.

B. Reliability - In order for evidence to be admissible in a fair hearing it must be reliable.

C. Competence - In addition to relevance and reliability, evidence admitted at a hearing must be competent.

D. Privilege - Appellants may decline to present testimony or evidence at a fair hearing under claim of privilege.

Privilege may include the privilege against self-incrimination or communication to an attorney, a religious advisor, or doctor.

Exception: Privilege may not be disclosed without the consent of the person who sought the professional assistance unless: 1. It has been waived 2. The person attempting to claim it has put the subject of the privilege at issue in the fair hearing

1.Claimants or Witnesses May Waive Privilege

Privileges are waived by a claimant or witness if he or she testifies to some part of the privileged matter.

EXAMPLE: A person who makes his or her medical condition an issue may not use Doctor/ Patient privileges to exclude any information relating to his or her condition.

2.Hearing Officer Limits Admissible Evidence

Only evidence relating to the issue under appeal is admissible at the hearing. Issues under appeal include those offered by:

A. The appellant at the time of his or her appeal

B. The State as a basis for the action or inaction under appeal

C. Another party as a basis for the action or inaction under appeal

3.Hearing Officer May Admit Other Evidence

Information concerning matters of common knowledge and generally accepted as true may be relied on in a fair hearing whether or not it is introduced by evidence or testimony.

The behavior of a party to a hearing may be taken by a hearing officer into evidence only when the behavior has been noted in the hearing record.

16 Del. Admin. Code § 5000-5600

15 DE Reg. 1343 (03/01/12) (Final)