Evidence Not Provided to Local Agency Prior to Fair Hearing

by Gene Doyle, LMSW

In a May 1, 1991 memorandum to ALJs, Acting Deputy Counsel for Fair Hearings, Russell J. Hanks, set forth the Office of Administrative Hearings (OAH) policy with respect to social services districts' failures to comply with 18 NYCRR Part 358. Under the heading, "Other Concerns" (at p. 4), Mr. Hanks stated that:

     "In some cases, an appellant will provide evidence for the first time during a hearing which was not provided to the social services district at the time the original determination was made. Where the evidence demonstrates that a determination in the appellant's favor is now appropriate, the decision should indicate that the determination of the district was correct when it was made but that new evidence now requires a different result."

In an April 3, 2001 memorandum to ALJs, Mr. Hanks provided guidelines to assist in their deliberative process, to promote statewide consistency and to provide direction for the use of the Decision Outcome, "Correct When Made." Mr. Hanks instructed (at p. 1):

     "Where the decision to direct relief (either specific relief or a remand) turns on evidence not available to the agency at the time of the original determination, 'Correct When Made' may apply, rather than an outright reversal or affirmance. While this outline addresses the most common circumstances to use 'Correct When Made,' it is not intended to be all-inclusive.

     "In cases where 'Correct When Made' is the appropriate outcome, the basis for this determination should be addressed in the Discussion section of your recommended decision. In addition, the Decision and Order section should indicate that the Agency's determination was 'correct when made.' The decision should then contain the directives that would have been applicable if the Agency were being reversed. It should also include the form paragraph advising the appellant of the need to cooperate where the decision (or the agency) indicates the need for additional information from the appellant.

     "If you are drafting a decision using the scripting process and the script asks for a choice between 'Affirm' and 'Reverse', you should choose 'Reverse,' so that the appropriate directives are inserted into the decision. The document should then be edited to reflect that the decision was 'correct when made.'

"The Decision and Order should conform to the following example:

"Decision and Order:

"The Agency's determination was correct when made. However,

"(Use Directives for Reversals or Remands)"

Please read the Disclaimer.