N.Y. Comp. Codes R. & Regs. tit. 18 § 359.7

Current through Register Vol. 46, No. 43, October 23, 2024

Section 359.7 - Administrative disqualification hearing

(a) Following a determination that the evidentiary packet is sufficient and the scheduling of an administrative disqualification hearing, an administrative disqualification hearing will be conducted in accordance with the requirements of this section.

(b) Where factual issues arise from the same or related circumstances, a consolidated administrative disqualification hearing will be held for an FS-IPV and a public assistance-IPV. All evidence, testimony and proof relating to the consolidated cases will be presented together, but separate findings will be made with respect to each separately alleged intentional program violation.

(c) An administrative disqualification hearing scheduled pursuant to this Part will be adjourned when:

(1) the request for such adjournment is made at least 10 days in advance of the scheduled hearing date; or

(2) the request for such adjournment is made less than 10 days prior to the scheduled hearing date and the individual demonstrates good cause for requesting the adjournment.

The hearing cannot be adjourned for more than a total of 30 days.

(d) Rights in the administrative disqualification hearing process. The accused individual, or such individual's representative, must have adequate opportunity to:

(1) examine the contents of the individual's case file, and all documents and records to be used by the social services district at the hearing, at a reasonable time before the date of the hearing and during the hearing;

(2) present the case himself or herself, or with the aid of an authorized representative;

(3) bring witnesses;

(4) establish all pertinent facts and circumstances;

(5) advance any arguments without undue influence; and

(6) question or refute any testimony or evidence including the opportunity to cross-examine adverse witnesses.

(e) Conduct of an administrative disqualification hearing.

(1) The hearing officer must advise the accused individual that he or she may refuse to answer questions during the hearing.

(2) The burden of proving that an accused individual has committed an intentional program violation is on the social services district.

(3) When an individual has been convicted in a State or Federal court of a public assistance-IPV, and such conviction was based on a plea of guilty, and such conviction was based on the same set of facts which will be the subject of the administrative disqualification hearing, and such individual was not advised on the record in the court proceeding of the disqualification provisions of this Part:

(i) neither the conviction itself nor the records of the court proceeding may be used in any manner in the administrative disqualification hearing; and

(ii) the existence of the court proceeding may not be disclosed in any manner to the hearing officer by the office or social services district nor by any person acting on behalf of the office or social services district nor by any witness presented by any social services official.

(4) All provisions in Part 358 of this Title concerning the conduct of fair hearings which are not inconsistent with any of the specific provisions of this section are applicable to administrative disqualification hearings.

(f) Decision after an administrative disqualification hearing.

(1) The decision after an administrative disqualification hearing must be based exclusively on clear and convincing evidence and other material introduced at the hearing which demonstrates that an individual committed and intended to commit one or more intentional program violations.

(2) The decision after an administrative disqualification hearing must specify the reasons for the decision, identify the supporting evidence, identify the pertinent statutes or regulations and respond to reasoned arguments made by the individual or his or her representative.

(3) The department must conduct the hearing, arrive at a decision and forward the decision to the social services district for implementing action within 90 days of the date of the notice of administrative disqualification hearing. In the event of a client-requested adjournment, this time limit will be extended by the number of days the hearing was postponed.

(g) Default of an administrative disqualification hearing.

(1) If an accused individual cannot be located or fails to appear at an administrative disqualification hearing scheduled pursuant to this Part, the opportunity to appear at the hearing may be considered to be defaulted by such individual except as follows:

(i) the individual contacts the department within 30 days after the date of the hearing decision and claims good cause for failure to appear based on nonreceipt of the notice of administrative disqualification hearing or the notice of administrative disqualification hearing was returned as undeliverable. In such situations, a hearing will be scheduled at which the commissioner or the commissioner's designee will determine whether the individual had good cause for failing to appear at the administrative disqualification hearing. Good cause for failing to appear based on nonreceipt of the notice of administrative disqualification hearing will be deemed to exist when the individual establishes at the hearing that the failure to receive the notice of administrative disqualification hearing was not caused by the individual. If good cause for failing to appear is not established, the hearing decision will remain valid. If good cause is established, the recipient and the agency will have an opportunity to present any evidence or testimony concerning the agency's allegation that the recipient committed an intentional program violation. After consideration of such evidence and/or testimony, the prior hearing decision will be vacated and a new hearing decision will be issued; the hearing officer who originally presided at the hearing may conduct the new hearing; or

(ii) the individual contacts the department within 10 days after the date of the scheduled hearing and claims good cause for failing to appear. In such a case, a hearing will be scheduled at which the commissioner or the commissioner's designee will determine whether the recipient had good cause for failing to appear at the administrative disqualification hearing. If good cause for failing to appear is not established, the hearing decision will remain valid. If good cause is established, the recipient and the agency will have an opportunity to present any evidence or testimony concerning the agency's allegation that the recipient committed an intentional program violation. After consideration of such evidence and/or testimony, the prior hearing decision will be vacated and a new hearing decision will be issued; the hearing officer who originally presided at the hearing may conduct the new hearing.

(2) If the opportunity to appear at a hearing has been defaulted by the accused individual in accordance with paragraph (1) of this subdivision, the hearing must be conducted without the accused individual being present. Even though the accused individual is not present, the hearing officer is required to consider the evidence carefully and determine if an intentional program violation was committed based on clear and convincing evidence.

(h) Access to record of proceedings. The transcript or recording of testimony, exhibits, or other official reports introduced at the hearing, together with all papers and requests filed in the proceeding, and the original or a true copy of the decision after an administrative disqualification hearing must be made available to the individual or to the individual's representative at a reasonable time and place.

(i) Review of disqualification hearing decisions. A decision that an intentional program violation has been committed cannot be reversed by a subsequent fair hearing held pursuant to Part 358 of this Title. However, the disqualified individual is entitled to seek relief in a court having appropriate jurisdiction pursuant to article 78 of the Civil Practice Law and Rules. The period of disqualification may be subject to stay or other injunctive remedy ordered by such a court, but any period for which sanctions are imposed shall remain in effect, without possibility of administrative stay, unless and until the finding upon which the sanctions were imposed is subsequently reversed by a court of appropriate jurisdiction.

N.Y. Comp. Codes R. & Regs. Tit. 18 § 359.7