Dismissal of a Fair Hearing Request

Article ID: 51

Last updated: 30 Aug, 2020

New York State Policy

According to 18 NYCRR § 358-5.5(a),

"(a) Except as provided in subdivision (b) of this section, OAH will consider a fair hearing request abandoned if neither the appellant nor the appellant’s authorized representative appears at a fair hearing, and neither the appellant nor the appellant’s authorized representative:

"(1) contacted OAH to request that the fair hearing be rescheduled; and

"(2) provided OAH with a good cause reason for failing to appear at the fair hearing on the scheduled date."

OTDA does not notify appellants and their authorized representatives when requests for Fair Hearings have been dismissed as abandoned, even though Social Services Law § 22[10] requires that

"10. In connection with every determination of an appeal pursuant to this section, the department shall inform every party thereto, and his representative, if any, of the availability of judicial review and the time limitation thereon."

If a Fair Hearing request has been dismissed as abandoned, see the article: Requesting the Reopening of a Dismissed Fair Hearing Request.

Federal Policy

The federal regulations, which govern Fair Hearings for the Temporary Assistance to Needy Families (TANF) program, the Medical Assistance (Medicaid) program and the Supplemental Nutrition Assistance Program (SNAP), set forth strict criteria for the state's dismissal of a Fair Hearing request.

TANF

For TANF-related Fair Hearings,

"The agency may . . . dismiss a request for a hearing . . . where it is abandoned. Abandonment may be deemed to have occurred if the claimant, without good cause therefor, fails to appear by himself or by authorized representative at the hearing scheduled for such claimant" (emphasis supplied).

45 C.F.R. § 205.10(a)(5)(v).

Medicaid

Similarly, for Medicaid-related administrative appeals,

"The agency may deny or dismiss a request for a hearing if—

"(a) The applicant or beneficiary withdraws the request in writing; or

"(b) The applicant or beneficiary fails to appear at a scheduled hearing without good cause" (emphasis supplied).

42 C.F.R. § 431.223.

SNAP

Likewise, for SNAP-related hearings,

"(1) The State agency must not deny or dismiss a request for a hearing unless:

"(i) The State agency does not receive the request within the appropriate time frame specified in paragraph (g) of this section, provided that the State agency considers untimely requests for hearings as requests for restoration of lost benefits in accordance with § 273.17;

"(ii) The household or its representative fails, without good cause, to appear at the scheduled hearing;

"(iii) The household or its representative withdraws the request in writing; or

"(iv) The household or its representative orally withdraws the request and the State agency has elected to allow such oral requests" (emphasis supplied).

7 C.F.R. § 273.15(j)(1).

Determination of Good Cause

Under these federal regulations, Fair Hearing requests involving TANF, Medicaid or SNAP determinations cannot automatically be dismissed just because neither the appellants nor their representatives appeared at their scheduled hearings. The default of a Fair Hearing does not, by itself, justify its dismissal. To be dismissed, the hearing request must be abandoned, which means that the appellants did not have good cause for missing their scheduled hearings.

The State Medicaid Manual (SMM) is published by the United States Department of Health & Human Services (HHS) Centers for Medicare and Medicaid Services (CMS), formerly known as the Health Care Financing Administration (HCFA).

As explained in its Foreword (at p. i),

"This manual makes available to all State Medicaid agencies, in a form suitable for ready reference, informational and procedural material needed by the States to administer the Medicaid program. It is an official medium by which the Health Care Financing Administration (HCFA) issues mandatory, advisory, and optional Medicaid policies and procedures to the Medicaid State agencies."

SMM § 2902.3, which addresses the "Dismissal of A Hearing Request," pursuant to 42 CFR § 431.223(b), instructs states as follows:

"A. Dismissal.--You may dismiss a request for a hearing when:

"o The claimant or his representative requests in writing that the request for hearing be withdrawn; or

"o The claimant abandons his right to a hearing as described in subsection B.

"B. Abandonment.--The hearing request may be considered abandoned when neither the claimant nor his representative appears at scheduled hearing, and if within a reasonable time (of not less than 10 days) after the mailing of an inquiry as to whether he wishes any further action on his request for a hearing no reply is received" (emphasis supplied).

Note: By operation of the opening provision of New York's Medical Assistance (MA) State Plan, the New York State Department of Health "hereby agrees to administer the program in accordance with the provisions of this State plan, the requirements of titles XI and XIX of the Act, and all applicable Federal regulations and other official issuances of the Department" (emphasis supplied). New York Medicaid State Plan, Designation and Authority, at p. A1, effective January 1, 2014.

Dismissal of Medicaid-Related Fair Hearing Requests

Fishman v Daines, 09-CV-5248 (E.D.N.Y.)

In Fishman, plaintiffs sued both the New York State Office of Temporary and Disability Assistance (OTDA) and the New York State Department of Health (DOH) to challenge New York State's policy of automatically dismissing Fair Hearing requests upon default, that is, when neither appellants nor their representatives appear for their scheduled Fair Hearings. See 18 NYCRR § 358-5.5(a).

After the court's denial in part of the defendants' motion to dismiss [see Fishman v Daines, 743 F.Supp.2d 127 (E.D.N.Y. 2010)], the plaintiffs moved for certification of a statewide class and for classwide preliminary relief. The parties subsequently stipulated to a statewide plaintiff class and to certain interim procedures in lieu of a preliminary injunction.

Under the interim procedures, defendants agreed to mail a Fishman Default Letter to Medicaid appellants who missed their Fair Hearings. If appellants mailed back the Fishman Default Letter to OTDA within ten days, their Fair Hearings would be rescheduled. At the rescheduled hearing, the threshold issue to be determined was whether the appellant had good cause for defaulting the originally scheduled hearing.

Note: Fishman-related Fair Hearing Decisions can be found on OTDA's Fair Hearing Decision Archive by searching with the word "Fishman."

Effective November 13, 2012, 18 NYCRR § 358-5.5 was amended to read as follows:

"§ 358-5.5 Abandonment of a request for a fair hearing.

"(a) OAH will consider a fair hearing request abandoned if neither the appellant nor appellant's authorized representative appears at the fair hearing unless either the appellant or appellant's authorized representative has:

"(1) contacted OAH to request that the fair hearing be rescheduled; and

"(2) provided OAH with a good cause reason for failing to appear at the fair hearing on the scheduled date.

"(b) OAH will restore a fair hearing to the calendar if the appellant or appellant's authorized representative has met the requirements of subdivision (a) of this section.

"(c) If the appellant defaults a fair hearing that is subject to aid-continuing, the right to aid-continuing ends upon default.

"(1) If the fair hearing is restored to the calendar based upon a request to do so made within 60 days from the date of the default, aid-continuing will be restored retroactively.

"(2) If the fair hearing is restored to the calendar based upon a request to do so made 60 days or more from the date of the default, aid-continuing will be restored prospectively only from the date of the request to restore the fair hearing to the calendar.

"(d) In no event will a defaulted fair hearing be restored to the calendar if the request to do so is made one year or more from the date of the defaulted fair hearing."

When defendants refused to apply the amended 18 NYCRR § 358-5.5 to the Fishman plaintiff class, the court vacated the April 6, 2011 stipulation as of September 13, 2013 and permitted plaintiffs to move for injunctive relief.

After the parties again stipulated to a statewide class of Medicaid appellants, the court denied plaintiffs' motion for classwide injunctive relief. See Fishman v Daines (E.D.N.Y. September 16, 2014). On appeal, the denial of the motion for a preliminary injunction was vacated and remanded to the lower court. See Fishman v Paolucci (2d Cir. October 15, 2015).

Upon remand, the court "preliminarily enjoined" the defendants "from dismissing administrative appeals of defaulting Medicaid appellants who are not given at least 10 days to respond to a written notice from defendants inquiring whether they would like their hearings rescheduled." Fishman v Daines, 164 F.Supp.3d 409 (E.D.N.Y. 2016). Defendants were given until April 11, 2016 to implement the preliminary injunction.

On April 13, 2016, OTDA issued OAH Procedures Transmittal 16-02 to all OAH staff, Hearing Officers, Supervisory Hearing Officers and social services districts to announce the implementation of the statewide preliminary injunction in Fishman v Daines, 164 F.Supp.3d 409 (E.D.N.Y. 2016), effective April 11, 2016.

This transmittal explained that

Effective April 11, 2016, pursuant to the preliminary injunction in Fishman v. Daines, upon default of a hearing requested only to contest any Medicaid related issue, the Office of Administrative Hearings (OAH) will issue a letter entitled Fishman Default Letter (FHIS Letter 18) to the appellant and the appellant’s representative. The date of the letter will be the mailing date, approximately two business days after the scheduled date of the hearing. . . . A copy of Letter 18 is attached.

The Fishman Default Letter will instruct clients who wish to have their hearing rescheduled to respond to the letter within ten days of the date of the post mark. Upon receipt of a request to reschedule a Medicaid hearing, Communications Intake Unit Staff (CIU) will remove the “HOLD” and notify the Scheduling Unit via email that the hearing is available for scheduling.

Other issues cannot be added to the previously defaulted Medicaid hearing.

At the rescheduled hearing, the Hearing Officer will determine whether the appellant had good cause for missing the initially scheduled hearing date.

If the appellant defaults the hearing a second time, a subsequent Fishman Default Letter will not be issued.

Ten days after the Fishman Default Letter is sent any hearings for which no response was received will be marked as defaulted by designated staff, and dismissed. If the appellant requests a re-opening of their Medicaid fair hearing after a default has been entered, CIU staff should make a good cause determination pursuant to the terms of State Regulation 18 NYCRR 358-5.5 and follow the same procedures in Transmittal 12-01.

On March 29, 2017, Judge Joseph F. Bianco permanently enjoined DOH and OTDA "from dismissing administrative appeals of defaulting Medicaid appellants who are not given at least ten (10) days to respond to a written notice from defendants inquiring as to whether they would like their hearings rescheduled." Fishman v Daines, 247 F. Supp. 3d 238, 250 (E.D.N.Y. 2017).

Current Version of 18 NYCRR § 358-5.5

To comply with the Fishman Judgment, 18 NYCRR § 358-5.5 was amended, effective April 1, 2020, to read as follows:

"§ 358-5.5 Abandonment of a request for a fair hearing.

"(1) contacts OAH to request that the fair hearing be rescheduled; and

"(2) provides OAH with the good cause reason for failing to appear at the fair hearing on the scheduled date.

"(b) OAH will consider a fair hearing request involving Medical Assistance abandoned if neither the appellant nor the appellant’s authorized representative appears at a fair hearing, and the requirements of subdivision (a) of this section are not met within 10 calendar days of the postmark of a letter sent to the appellant and the appellant’s authorized representative inquiring whether the appellant still wants a fair hearing.

"(c) OAH will reopen an abandoned fair hearing request if, within one calendar year from the scheduled date of the fair hearing, the requirements of subdivision (a) of this section are met.

"(d) If neither the appellant nor the appellant’s authorized representative appears at a fair hearing that has been rescheduled or reopened pursuant to subdivision (a), (b) or (c) of this section, OAH will consider the fair hearing request abandoned and the letter described in subdivision (b) of this section will not be sent.

"(e) If neither the appellant nor the appellant’s authorized representative appears at a fair hearing that is subject to aid-continuing, such aid shall discontinue on the date the fair hearing request is abandoned.

"(1) If the fair hearing request is thereafter reopened pursuant to subdivision (c) of this section based upon a request made within 60 days from the scheduled date of the fair hearing, aid-continuing will be restored retroactively to the date of abandonment.

"(2) If the fair hearing request is thereafter reopened pursuant to subdivision (c) of this section based upon a request to do so made 60 days or more from the scheduled date of the fair hearing, aid-continuing will be restored prospectively from the date of the request to reopen.

"(f) In no event will an abandoned fair hearing request be reopened if such request is made one calendar year or more from the scheduled date of the fair hearing."

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