Pre-Hearing Disclosure of Requested Case Record Documents

by Gene Doyle, LMSW

On November 29, 1989, Local Commissioners Memorandum 89 LCM-215 was issued to address "concern about compliance by social services districts with the requirement of 18 NYCRR Part 358 relating to the obligation to provide the appellant and the appellant's authorized representative with copies of documents which the district intends to present at a fair hearing or with documents which the appellant or the representative have requested for the purpose of preparing for a fair hearing."

This LCM instructed (at pp. 1-2):

     "I. Provision of Documents to be Presented at the Fair Hearing

     "Section 358-4.2(c) provides that upon oral or written request, including request by telephone, social services districts must provide the appellant and the appellant's authorized representative with copies of the documents to be presented at the fair hearing. Such documents must be provided without charge and must be provided to the appellant and the appellant's representative by mail if the appellant or the appellant's representative requests that such documents be mailed. Copies provided under this provision must be provided within the time-frames set forth in section 358-3.7 which are described below.

     "II. Provision of Documents for Fair Hearing Preparation

     "Section 358-4.2(d) provides that upon oral or written request, including a request by telephone, the social services agency must provide the appellant and the appellant's authorized representative with copies of any documents from the appellant's case file which the appellant or the appellant's representative requests for the purposes of preparing for a fair hearing.

    "Such documents must be provided without charge and must be provided to the appellant and the appellant's representative by mail if the appellant or the appellant's representative requests that such documents be mailed.

    "Such copies must be provided within the time-frames set forth in section 358-3.7 which are described below."

Note: The section entitled, "Time-frames for Compliance for Requests for Documents" is outdated. The regulations which govern pre-hearing document requests, 18 NYCRR §§ 358-3.7(b) and 358-4.2(c) and (d), originally required local social services districts to provide free copies of requested documents within three business days of the request or at the time of the fair hearing, whichever was earlier. These regulations were amended on November 19, 1997, at which time the "three business day" time limit was replaced by the undefined phrase, "within a reasonable time from the date of the request."

This LCM remains relevant and significant insofar as it interprets 18 NYCRR §§ 358-3.7(b)(1) and (2) and 358-4.2(c) and (d) as requiring that free copies of requested documents must be provided to both "the appellant and the appellant's authorized representative."

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, "Failure to Provide Requested Documents Before Hearings" (at pp. 2-3), Mr. Hanks stated that:

     "18 NYCRR Section 358-4.2(c) requires a social services district, upon request, to 'provide to the appellant or appellant's representative copies of the documents to be presented at the fair hearing.' Subsection (d) imposes a similar requirement for 'copies of any documents from appellant's case file which the appellant requests for purposes of hearing preparation.' Social services districts were reminded of their obligations in this regard in 89 LCM-215. When a social services district fails to comply with 18 NYCRR Section 358-4.2, the hearing officer must ensure that the appellant is not disadvantaged. This means not only requiring the district to provide the appropriate documents but also giving the appellant time to review them. The hearing officer can order a short or long recess or an adjournment and direct the social services district to obtain the requested documents. In appropriate circumstances, the hearing officer should preclude the district from submitting the documents into evidence."

In a July 22, 1993 memorandum, Mr. Hanks, now the Deputy General Counsel for Administrative Hearings, advised Administrative Law Judges (ALJs) of a Memorandum of Understanding that had been submitted to the Appellate Division in the appeal in Varshavsky v Perales, Index No. 91-40767, Order Granting Intervention, Class Certification and Preliminary Injunctive Relief (Sup. Ct. New York Co. March 5, 1992), which ordered the provision of telephone and home hearings to a statewide class of Fair Hearing appellants who cannot travel to or participate in Fair Hearings at centralized hearing sites.

Mr. Hanks reminded ALJs

"of the necessity to make sure that the appellant has received a copy of the documents presented by the agency before proceeding with a telephone hearing. The appellant should also be asked if he or she requested any other documents from the agency, and whether they were received. This is especially important in light of our representations to the Court in arguing that the statutory stay of the preliminary injunction in Varshavsky should not be vacated.

     "If an appellant has not received any of the documents presented by the agency at a hearing, or other relevant documents requested from the case record prior to the hearing, the matter should be adjourned, generally or to a date certain as appropriate."

Note: The March 5, 1992 Order of the lower court was subsequently affirmed by the Appellate Division. See Varshavsky v Perales, 202 A.D.2d 155 (1st Dept. 1994), and remains in effect to this day. To obtain reported decisions, see "Legal Research."

A March 21, 1996 memorandum was issued to ALJs by Henry Pedicone, OAH Associate Counsel and Director of Litigation and Compliance, in response to the Judgment entered in Rivera v Bane, Index No. 45305/92 (Sup. Ct. New York Co. December 22, 1995).

Note: This memorandum is outdated because the Rivera Judgment was vacated by a Stipulation of Settlement, so ordered by the court on February 22, 2005, due to the November 19, 1997 amendment of 18 NYCRR §§ 358-3.7(b) and 358-4.2(c) and (d), which replaced the original "three business day" time limit with the undefined phrase, "within a reasonable time from the date of the request."

A July 2, 1997 memorandum to ALJs was issued by Mr. Pedicone in response to the withdrawal of Petitioners' May 13, 1996 Motion for Contempt to enforce the Judgment entered in Rivera v Bane, Index No. 45305/92 (Sup. Ct. New York Co. December 22, 1995).

Note: This memo is outdated because the Rivera Judgment was vacated by a Stipulation of Settlement, so ordered by the court on February 22, 2005, due to the November 19, 1997 amendment of 18 NYCRR §§ 358-3.7(b) and 358-4.2(c) and (d), which replaced the original "three business day" time limit with the undefined phrase, "within a reasonable time from the date of the request."

In an October 30, 1997 memorandum, OAH Assistant Counsel Sharon Silversmith informed ALJs that the amendments of 18 NYCRR §§ 358-3.7(b) and 358-4.2(c) and (d), filed on October 29, 1997 and effective November 19, 1997,

"cannot be implemented in New York City until we receive relief from the order in Rivera v Bane.

     "The amendments eliminate provisions which required districts to provide appellants with documents the district will present at a fair hearing or which the appellant needs for a fair hearing within three business days of the request. Instead, the new standard is that the documents have to be provided within a reasonable period of time.

     "If the district fails to comply with these provisions the hearing officer may adjourn the case, allow a brief recess for the appellant to review the documents, preclude the introduction of the documents where the delay would be prejudicial to the appellant, or take other appropriate action to ensure that the appellant is not harmed by the agency's failure."

In a March 23, 2005 memorandum, Mr. Pedicone informed ALJs of the so-ordered Stipulation of Settlement in Rivera v Bane, Index No. 45305/92 (Sup. Ct. New York Co. February 22, 2005), which vacated and replaced the previous Judgment entered in Rivera v Bane, Index No. 45305/92 (Sup. Ct. New York Co. December 22, 1995). Rivera applied only to Fair Hearings involving the New York City Human Resources Administration (HRA).

Mr. Pedicone explained (at p. 1), that

     "3. The Stipulation of Settlement sets forth HRA’s agreement to what constitutes a 'reasonable time' to provide documents in its hearings, as well as the consequences for its failure to comply.

     "4. For hearing packets, a 'reasonable time' for mailing is now within five business days after the request, where the request is made seven or more business days before the hearing. Where the request is made less than seven days before the hearing, the packet must be presented at the hearing. Where HRA does not meet these requirements, HRA has agreed to withdraw its notice.

     "5. For specifically identified documents from the case record, a 'reasonable time' for mailing is 'before the date of the hearing.' Where the request is made less than five days before the hearing, a 'reasonable time' is at the hearing. Where HRA does not meet these requirements, the ALJ, in essence, must apply one or more of the remedies set forth in 18 NYCRR Section 358-3.7(b)(4) (e.g., recess, adjournment, document preclusion, etc.), with the additional availability of the specific authority to direct HRA to withdraw its notice."

Mr. Pedicone further explained (at p. 1) that

     "7. The Stipulation of Settlement does not apply to any requests for documents other than hearing 'evidence packets' or 'specifically identified documents.' Please note that the Stipulation vacates only the December 22, 1995 judgment. It does not vacate or supersede the Court’s decision of July 25, 1995, which found 'as a matter of law, that DSS regulations do not require HRA to respond to blanket requests for documents such as entire case records or all documents from a particular year.'"

In a February 28, 2007 memorandum, Mr. Pedicone advised ALJs of the status of the Stipulation of Settlement in Rivera v Bane, Index No. 45305/92 (Sup. Ct. New York Co. February 22, 2005), which was due to expire on February 22, 2007. Mr. Pedicone explained that

"This matter is currently the subject of an Order to Show Cause as to why the terms of the stipulation should not be continued. Please be advised that until this matter is resolved by the Court or by further stipulation, the terms of the 2005 Stipulation remain in effect."

In a June 13, 2007 letter to People Organized for Our Rights, Inc. (P.O.O.R.), Deputy General Counsel for Administrative Hearings Russell J. Hanks clarified OAH policy "as to whether a local agency has a responsibility to explain codes in computer printouts provided pursuant to 18 NYCRR §§ 358-3.7(b) and 358-4.2(c) and (d)." Mr. Hanks explained that

     "18 NYCRR 358-4.2(c) and (d) speak only to the requirement that the agency provide the documents that are to be submitted at the hearing, as well as any specifically identified documents from the case file. However, §358-3.7(b)(2) does provide that an appellant has the right to be provided with copies of additional specifically identified documents to assist in the preparation for a fair hearing. A reasonable interpretation of this section would require the agency to provide, on request by the appellant, a key to the codes (or similar explanatory document) for any identified computer printouts sent in response to the appellant's pre-hearing requests for documents.

     "Should a district fail to comply with such a request, the matter should be brought to the attention of the administrative law judge for resolution in accordance with the provisions of 18 NYCRR §358-3.7(b)(4)."

Advocacy Tip: Pre-hearing document requests should include a sentence such as "If any of the requested documents contain any codes, please also provide an explanation of all such codes."

Note: In Matter of F. M., FH #: 5453409M (OTDA, April 6, 2010), the Fair Hearing Decision reversed a proposed discontinuance of Public Assistance and Food Stamp benefits under the court-ordered Stipulation of Settlement in Rivera v Bane, Index No. 45305/92 (Sup. Ct. New York Co. 2005) because of the failure of the New York City Human Resources Administration (HRA) to provide requested explanations of computer codes contained in agency's documents.

In a March 17, 2011 memorandum, Mr. Pedicone informed ALJs "that a Stipulation of Settlement and Discontinuance was signed on January 10, 2011, in the case of Rivera v. Bane." Mr. Pedicone explained that

"The Stipulation signed on January 10, 2011, states that “the 2005 Stipulation has expired and has no effect whatsoever.” Therefore, the specific requirements set forth for HRA in the above-described 2005 Stipulation are no longer applicable."

In Fair Hearings involving health care provided under a Medicaid Managed Care (MMC), Family Health Plus or and HIV Special Needs Plan, the health care provider must automatically mail its evidence packet to appellants.

Pursuant to § 25.6(b) of the Medicaid Managed Care/Family Health Plus/HIV Special Needs Plan Model Contract, dated March 1, 2014,

"The Contractor must provide to the Enrollee or the Enrollee’s authorized representative copies of the documents the Contractor will present at the fair hearing, also known as the 'evidence packet.' Copies of the evidence packet must be provided without charge. Within ten (10) business days of receiving notification of a hearing request, the Contractor must mail copies of the evidence packet to the Enrollee or the Enrollee’s authorized representative. If, due to the scheduling of the fair hearing, the evidence packet cannot be prepared at least five (5) business days before the hearing, and there is not sufficient time for the evidence packet to be mailed, the Contractor must provide the Enrollee or the Enrollee’s authorized representative such copies no later than at the time of the hearing."

Note: This contractual provision supersedes the requirement in 18 NYCRR §§ 358-3.7(b)(1) and 358-4.2(c) that appellants or their representatives must affirmatively request such evidence packets. The entire March 1, 2014 Model Contract is available on the New York State Department of Health website.

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