N.Y. Comp. Codes R. & Regs. tit. 14 § 602.2

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

Section 602.2 - General procedures

(a) Notice of proposed action and opportunity to be heard. The office, (see glossary), shall issue a notice of the OPWDD's decision to take action, which shall include:

(1) notice of the proposed action and a general description of the reasons therefor; and

(2) notice of any rights pursuant to law or regulation to appeal and to request a hearing on the matter.

(b)Appeal requests.

(1) The proposed action shall become effective on the date specified in the notice unless:

(i) the party makes a timely request for an appeal in writing, served in person or by mail; or

(ii) the commissioner extends, in writing, the time period specified in the notice of proposed action.

(2) The time within which the request shall be made depends upon the time limit prescribed by this Part for the specific type of appeal.

(c)Notice of appeal or hearing and statement of issues.

(1) A notice of appeal or hearing shall include:

(i) notice of the date, time, place of the hearing, or procedure to perfect the appeal and the name and address of the hearing officer;

(ii) a statement of the legal authority and jurisdiction under which the proceeding is to be held;

(iii) notice that failure to appear at a hearing or to process an appeal as directed may result in a recommendation of default by the hearing officer; and

(iv) notice that interpreter services are available for deaf or non-English speaking witnesses or parties, at no charge, upon written request within a reasonable time prior to any scheduled hearing.

(2) The statement of issues shall contain:

(i) a reference to the particular sections of the statutes and regulations at issue, if any; and

(ii) a specific statement of the matters asserted or at issue.

(3) Notice of hearing and statement of issues shall be served on the parties at least 10 days prior to any scheduled hearing date.

(d)Adjournments.

(1) Except for good cause shown, requests for adjournments shall be made to the hearing officer at least three days prior to the commencement of the hearing or date any written submission is due.

(2) Other adjournments may be granted by the hearing officer for good cause and with due regard for the convenience of all parties.

(3) All parties shall be notified in writing of adjournments to a specified date, time and place.

(e)Answer or responsive pleadings.

(1) Except as otherwise provided in this Part, a party may serve on the hearing officer, the individual or division of the office issuing the statement of issues and all other parties to the proceeding an answer or responsive pleading signed by that party. The answer or responsive pleading shall specify which allegations are admitted, which allegations are denied, and those allegations for which that party has insufficient knowledge or information upon which to form a belief.

(2) The hearing officer may require a party to submit an answer or responsive pleading.

(3) The answer or responsive pleading shall be served no later than five days before the initial hearing date.

(f)Service of notice and other papers.

(1) A notice of hearing and all other notices, orders and communications from the office shall be deemed to have been duly served if properly postpaid and addressed to the person to be notified or communicated with at the address last given by him or her in writing to the commissioner and delivered by ordinary mail, or by registered or certified mail, return receipt requested, or if delivered to such address by an employee or agent of the OPWDD.

(2) For the purpose of calculating time of notice:

(i) Personal service shall be considered effected upon the date of delivery to the last address given in writing to the commissioner.

(ii) Service by ordinary mail shall be considered effected on the fifth day after mailing.

(iii) Service by registered or certified mail, return receipt requested, shall be considered effected upon acceptance.

(g)Discovery.

There shall be no discovery, except as otherwise provided in this Part.

(h)Hearing officer.

(1) The hearing officer shall be an attorney-at-law who is a member in good standing of the New York State Bar.

(2) No hearing officer shall preside who has any interest or bias with respect to the matter involved in the proceeding. Upon the filing in good faith by a party of a timely and sufficient written request for removal of a hearing officer for interest, bias or failure to quality, the commissioner shall determine the matter as part of the record in the case after all parties have been given the opportunity to submit written comment. Hearing officers may be employees of OPWDD and such employment and responsibilities thereof, without an additional showing, shall not be considered an interest, bias or failure to qualify under this section. However, hearing officers who are employees of OPWDD shall not have responsibilities which involve the legal representation of OPWDD's position in any administrative hearings or appeals.

(3) The hearing officer shall conduct the hearing in a fair and impartial manner.

(4) The hearing officer shall have the power to:

(i) rule upon requests, including requests for adjournments;

(ii) set adjourned dates, times and places of hearings;

(iii) administer oaths and affirmations;

(iv) issue subpoenas requiring the attendance and testimony of witnesses and the production of books, records, contracts, papers and other evidence, provided that each party shall effect his or her own service and bear the cost of appropriate fees;

(v) examine witnesses;

(vi) admit and exclude evidence and witnesses;

(vii) limit the number of times any witness may testify, repetitious examination or cross-examination, and the amount of corroborative or cumulative testimony;

(viii) request and/or hear oral argument;

(ix) request written arguments required by this Part or in addition to those required by this Part;

(x) make maximum use of preliminary steps to refine issues and to encourage resolution by the parties; and

(xi) do all acts and take all measures necessary for the maintenance of order and the efficient conduct of the hearing and processing of an appeal.

(5) Upon being notified that a hearing officer declines or fails to serve, or in the case of death, resignation or removal of the hearing officer, a successor hearing officer shall be designated by the commissioner to continue the proceeding.

(6) The designation of a hearing officer shall be in writing and made a part of the hearing record.

(i)Conference(s).

(1) At any time prior to the issuance of the commissioner's determination, the hearing officer may direct the parties to appear for a conference to consider matters which will tend to simplify the issues or expedite the proceeding. Such conferences may be conducted by telephone.

(2) Nothing contained herein shall be deemed to prevent the parties from holding conferences on their own initiative to consider matters which will tend to simplify the issues or expedite the proceeding.

(3) The conference may be transcribed or the hearing officer may reduce results of the conference to writing in a document which will be made part of the record. A conference may also be conducted without becoming part of the record.

(j)Stipulations and consent orders.

(1) At any time prior to the issuance of the commissioner's determination, the parties may enter into a stipulation for the resolution of any or all issues.

(2) The commissioner may issue a consent order upon agreement or stipulation of the parties. A consent order shall have the same force and effect as the commissioner's determination issued after a hearing.

(k)The appeal.

(1) Appearances.

(i) A party may appear in person or be represented by an employee or member of its board of directors, if such representative is designated in writing by the board of directors to represent the party, or by an attorney who is a member in good standing of the Bar of New York State. Any such attorney shall file a written notice of appearance. If a party appears by an attorney or a representative designated by the board, service of papers thereafter shall be made upon such attorney or representative.

(ii) In the event a party or its representative does not appear at a scheduled hearing, or fails to meet other deadlines imposed by law, regulation or the hearing officer without prior notice of an inability to appear, the hearing officer may recommend to the commissioner a default decision against that party.

(2) Consolidation and severance.

(i) In proceedings which involve common questions of fact, the hearing officer, upon his or her own motion, or upon the motion of any party, may order a consolidation of actions or a joint hearing or appeal proceeding of any or all issues to avoid unnecessary delay and cost.

(ii) The hearing officer may order a severance of the hearing or appeal proceeding and hear or determine separately any issue in the proceeding to avoid prejudice or inconvenience.

(3) Intervention.

(i) At any time after the institution of a proceeding, the hearing officer may permit others to intervene upon a verified petition, a showing of good cause and with the consent of all parties.

(ii) The petition of anyone requesting intervention as a party shall state:

(a) the petitioner's interest in the matter at issue and the reasons why petitioner is so situated that the disposition may, as a practical matter, impair or impede his or her ability to protect that interest, and why petitioner's interest is not adequately represented by the existing parties;

(b) the nature of the evidence petitioner intends to present and the names of witnesses, if any;

(c) the nature of the arguments petitioner intends to make; and

(d) any other reason why the petitioner should be allowed to intervene.

(4) Conduct of hearing and evidence.

(i) The hearing officer shall not be bound by the rules of evidence observed by courts, except that the rules of privilege recognized by law shall be respected.

(ii) The hearing officer shall conduct the hearing.

(iii) Each party shall have the right to make opening and closing statements, present evidence and witnesses, and cross-examine witnesses.

(iv) Adjournments may be granted by the hearing officer for good cause and with due regard for the convenience of all parties.

(v) All parties shall be notified in writing of adjournments to a specified date, time and place.

(vi) Unless otherwise ordered in the public interest by the commissioner, or otherwise provided in this Part, hearings shall be open to the public.

(vii) Each witness shall be sworn or give an affirmation.

(viii) If evidence at a hearing relates to the identity, condition or clinical record of a person (see glossary), the hearing officer shall exclude all others from the room except parties to the proceeding, their counsel, the witness being examined, others determined by the hearing officer to be essential to the presentation of its case by a party and any others the presence of whom is consented to by all parties, the hearing officer and the person whose identity, condition, or clinical record is being examined. The record of this proceeding shall not be available to anyone outside the OPWDD, other than a party to the proceeding or his or her counsel, except by order of a court of competent jurisdiction.

(ix) All documentary evidence may be received in the form of copies, excerpts, or by incorporation by reference.

(x) All parties shall have the right to make oral arguments before a hearing officer, which shall be included in the record of the hearing. Such oral argument may be curtailed in the discretion of the hearing officer, provided that a party shall be given the opportunity to submit his or her argument in writing.

(xi) A verbatim recording of the proceedings shall be made by whatever means the OPWDD deems appropriate. A transcription of the recording shall be made available to any party requesting it upon payment of the cost of transcription. If more than one party requests a transcript, the cost may be allocated between the parties.

(5) Memoranda of law and legal briefs may be required by the hearing officer, or may be submitted by any party.

(i) The hearing officer will fix the time within which memoranda of law or legal briefs may be filed. Memoranda of law or legal briefs received subsequent to the time specified need not be considered.

(ii) The party submitting the memoranda of law or legal briefs must provide copies to all parties.

(6) The record of the appeal shall include: notice of proposed action; the initial request of appeal; the notice of hearing or appeal; statement of issues; answer and any other responsive pleadings; letter appointing hearing officer; motions and requests submitted and rulings thereon; transcripts or recordings of conferences or testimony taken at the hearing; exhibits; stipulations, if any; memoranda of law, legal briefs and other written material that may have been submitted and filed in connection with the appeal; the hearing officer's initial and final reports and recommendations; any decision, determination, or order rendered; and any other jurisdictional documents, or other documents or material properly submitted into the record.

(l)Hearing officer's initial report.

After receipt and review of any recording or transcript and any legal briefs and any other material properly a part of the record and memoranda of law, the hearing officer shall prepare the initial report, including findings of fact and proposed outcome(s).

(m)Written exceptions and arguments.

(1) Within 20 days after service of the hearing officer's initial report, each party may submit written exceptions to and arguments on that report.

(2) Within 10 days after service of the exceptions and arguments, each party may submit written replies to the exceptions and arguments.

(3) The exceptions and arguments and the replies shall be submitted to the hearing officer, with a copy served on each of the other parties.

(4) Unless the hearing officer grants an extension of time, exceptions, arguments and replies submitted after the prescribed time need not be considered.

(n)Hearing officer's final report and recommendation to the commissioner.

After receipt of exceptions, arguments and replies, if any, the hearing officer shall submit a final report, including findings of fact and proposed outcome(s), to the commissioner, along with the record of the hearing, including any exceptions, arguments and replies received.

(o)Reopening hearing to present new evidence.

After the conclusion of a hearing, but prior to the commissioner's determination, a hearing may be reopened for the presentation of new evidence upon petition and in the discretion of the hearing officer. The petition to reopen the hearing shall state, in detail, the nature the new evidence and the reasons for the failure to submit the evidence prior to the conclusion of the hearing. The commissioner may, upon his or her own motion and upon reasonable notice, reopen a hearing for the presentation of additional evidence.

(p)The commissioner's decision.

After receipt of the hearing officer's final report and recommendation and the record, the commissioner shall either:

(1) upon his or her own motion and upon reasonable notice, reopen the appeal for the presentation of additional evidence; or

(2) direct the hearing officer to make additional findings, recommendations or otherwise clarify his/her report; or

(3) make a final determination. The commissioner's determination shall be in writing and shall contain findings of fact and, if applicable, conclusions of law. A copy of the commissioner's determination shall be served on the parties.

(q)Finality.

The commissioner's determination is final five days after mailing.

(r)Waiver of rules.

Any of the rules in this Part may be waived by agreement of the parties and the commissioner or, if a hearing officer has been appointed by agreement of the parties with the consent of the hearing officer and the commissioner.

N.Y. Comp. Codes R. & Regs. Tit. 14 § 602.2

Amended New York State Register September 21, 2016/Volume XXXVIII, Issue 38, eff. 9/21/2016