N.Y. Comp. Codes R. & Regs. tit. 8 § 247.4

Current through Register Vol. 46, No. 45, November 2, 2024

Section 247.4 - Impartial hearing

(a) Request for an impartial hearing. A request for an impartial hearing shall be made no later than 90 days after the individual is informed of the agency' s decision or action which the individual seeks to review. Any request for administrative review shall be considered a request for an impartial hearing as well.

(b) Scheduling of an impartial hearing. Upon receipt of a request for review, a hearing officer shall be appointed by the deputy commissioner. The hearing officer shall set a date, time and site for the hearing convenient for all parties. The date set shall be within 60 days of the receipt of the request for an impartial hearing.

(c) Notice. Notice of the scheduled impartial hearing shall be mailed to all parties. The notice shall include the time, date, place and nature of the hearing, the identity of the hearing officer, a statement of the legal authority and jurisdiction under which the hearing is to be held, a reference to pertinent statutes, regulations, or agency policy involved, and a short statement of matters asserted. An explanation of the hearing procedure and the individual's right to representation shall be included with the notice.

(d) Request for rescheduling. Prior to the day on which an impartial hearing is scheduled, a hearing officer:

(1) may, with the consent of the parties, change the date, time or place of the hearing, and shall give written notice to the parties; or

(2) shall, upon a showing of good cause by either party, reschedule the hearing.

(e) Default. The individual's failure to appear or to give notice of an inability to appear at a scheduled hearing shall be deemed a waiver of the right to a hearing, unless the individual applies promptly to the hearing officer for relief from default. Such application shall include documentation of the reasons for the individual's failure to appear and shall be granted if the individual establishes good cause for such failure.

(f) Withdrawal from hearing. The parties to an impartial hearing may resolve the issues causing the disagreement prior to a hearing. If, as a result of this resolution, the individual is satisfied and wishes to withdraw the request for an impartial hearing, the individual shall submit a signed statement withdrawing the request for an impartial hearing. However, a hearing shall not be delayed or cancelled because of the possibility of a negotiated agreement, unless the parties agree to a specific extension.

(g) Subpoenas. At the request of any party to the proceeding and subject to statutory requirements, the hearing officer shall issue subpoenas in the name of the agency, requiring attendance and giving of testimony by witnesses and the production of documents and other evidence.

(h) Rights of the individual during a hearing. The individual shall have the right to:

(1) present and establish all relevant facts by oral testimony and documentary evidence;

(2) advance any pertinent arguments without undue interference;

(3) question or refute any evidence or testimony, including an opportunity to confront and cross-examine adverse witnesses;

(4) examine and introduce pertinent evidence from the record of service, subject to the provisions of section 247.5 of this Part; and

(5) examine and introduce any other pertinent agency documents, as determined by the hearing officer.

(i) Duties and powers of hearing officer.

(1) The hearing officer shall define the issues raised by the parties, receive and consider all relevant and reliable evidence, insure an orderly presentation of the evidence and issues, oversee the preparation of the record of the proceedings, and reach a fair, independent and impartial decision based solely upon the issues and evidence presented at the hearing and the approved State Plan, the Federal and State laws and regulations, and agency policies.

(2) The hearing officer shall have the powers provided by the State Administrative Procedure Act, section 304.

(j) Evidence. The introduction of evidence shall be governed by the provisions of the State Administrative Procedure Act, section 306. All documents and other evidence offered or taken for the record shall be open to examination by the parties.

(k) Record of the hearing. A record of the fair hearing shall be prepared in accordance with the provisions of the State Administrative Procedure Act, section 302.

(l) Form of decision. The decision of the hearing officer shall be a comprehensive statement by the hearing officer, containing the following elements:

(1) a statement of the issue or issues raised by the parties at the hearing;

(2) a clear and complete statement of fact as supported by evidence presented at the hearing;

(3) reference to all laws, regulations and other legal bases for the recommendation;

(4) a concise statement of the conclusions drawn, and the basis for such conclusions; and

(5) a clear statement of the actions to be taken to implement the recommendation.

(m) Time limits. The hearing officer shall make a determination and issue a written decision to the agency and the individual and any authorized representative promptly after completion of the hearing, which shall be deemed to be upon receipt of the transcript of the hearing. The notice of the hearing officer's decision shall include a statement that the transcript of the hearing shall be made available to the individual upon request.

(n) Implementation. The counselor shall begin implementation of the decision within 20 days of its receipt. The decision shall be final, and may not be changed in its implementation without the written consent of the individual.

N.Y. Comp. Codes R. & Regs. Tit. 8 § 247.4