Requesting the Reopening of a Dismissed Fair Hearing Request

by Gene Doyle, LMSW

OTDA revised 18 NYCRR § 358-5.5, effective November 13, 2012, as a result of the settlement of Matter of Johnson v Berlin, Index No. 400081/2010 (Sup. Ct. New York Co. September 19, 2012).

OTDA replaced 18 NYCRR § 358-5.5 with a new version, effective April 1, 2020, as a result of the Judgment entered in Fishman v Daines, 247 F. Supp. 3d 238, 250 (E.D.N.Y. 2017).

Caution: The publicly available version of this regulation, provided by Thomson Reuters Westlaw, does not contain the April 1, 2020 revised version of 18 NYCRR § 358-5.5.

The current version of 18 NYCRR § 358-5.5 reads as follows:

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

     "(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) 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."

Timing of a Request to Reopen a Dismissed Fair Hearing Request

Fair Hearings Involving a Medicaid Determination

For Fair Hearings involving a Medicaid determination, OAH is required to send a Fishman Default Letter to appellants and their authorized representatives, inquiring whether they still want their requested Fair Hearings. If the appellants or their authorized representatives contact OAH within ten days of the postmark of the Fishman Default Letter, their Fair Hearings will be rescheduled.

During this 10-day period, the appellant's Medicaid benefits will continue unchanged if the Fair Hearing has been designated as aid-continuing.

At rescheduled Fair Hearings, ALJs will determine whether appellants had good cause for missing their initially scheduled hearing dates. See OAH Procedures Transmittal 16-09, which includes a copy of the Fishman Default Letter.

Reopening Requests Made Within One Year of the Scheduled Date of the Defaulted Fair Hearing

For all other appellants, including Medicaid appellants who did not respond within ten days of OAH's mailing of the Fishman Default Letter, a request to reopen a defaulted Fair Hearing can be made up to a full calendar year from the scheduled date of the original hearing which was missed. See 18 NYCRR § 358-5.5(c).

An abandoned fair hearing request will not "be reopened if such request is made one calendar year or more from the scheduled date of the fair hearing." 18 NYCRR § 358-5.5(f).

Establishing Good Cause for Missing the Scheduled Fair Hearing

What Constitutes Good Cause?

In order to revive a dismissed Fair Hearing request, appellants or their authorized representatives must establish "a good cause reason for failing to appear at the fair hearing on the scheduled date." 18 NYCRR § 358-5.5(a)(2).

According to OTDA's guidelines for its OAH staff,

"Good cause is defined as unusual, unexpected, or unavoidable circumstances beyond the control of the appellant, such as: a death in the immediate family, serious illness, unavoidable temporary inability to obtain counsel or representation, or inclement weather that prevents all reasonable travel. It does not include any event that can be prevented or mitigated by the timely taking of reasonable action" (emphasis supplied).

Disposition Codes Reference Guide, at p. 1, which lists 31 possible "good cause" reasons for reopening a defaulted Fair Hearing.

Other reasons not listed on OAH's Disposition Codes Reference Guide can also constitute "good cause," including an appellant's mental, intellectual or learning disability or limited ability to read, write, speak or understand English.

For further guidance, see the Digests of Fair Hearing Decisions on:

• Tolling the Time Limit to Request a Fair Hearing: Physical or Mental Impairment

• Tolling the Time Limit for Requesting a Fair Hearing: Limited English Proficiency (LEP)

• Non-Receipt of Notices or Other Mail.

Who Determines Good Cause?

For Medicaid appellants who timely respond to the Fishman Default Letter, their Fair Hearings will automatically be rescheduled. The first topic to be discussed at a rescheduled hearing will be the reason why neither the appellant nor the appellant's authorized representative appeared at the previously scheduled hearing. The ALJ (also known as the Hearing Officer) who presides at the rescheduled hearing "will determine whether the appellant had good cause for missing the initially scheduled hearing date." OAH Procedures Transmittal 16-09.

For all other appellants (including Medicaid appellants who do not respond to the Fishman Default Letter within ten days of its postmark), a member of the OAH staff will determine whether an appellant has established good cause.

In accordance with OAH Procedures Transmittal 12-01, if "OAH Communications Intake Unit Staff" conclude that

"a good cause reason is not established for failing to appear at the hearing on the scheduled date, the hearing will not be reopened, however, a new hearing will be scheduled. If good cause is established, the defaulted hearing will be reopened. In either case, the hearing officer is authorized to make the final decision on good cause" (emphasis supplied).

Note: If an appellant's explanation of good cause is rejected by OAH staff, it is likely that the "new hearing," which will be scheduled as a result of the failed request to reopen, will be dismissed because the time-limit for requesting a new hearing has expired. See 18 NYCRR § 358-3.5(b), which explains the the time limits for requesting a Fair Hearing.

Nevertheless, when the newly requested Fair Hearings are held, the ALJs will review the appellants' explanations for missing the originally scheduled hearings. The Fair Hearing Decisions will rule on whether or not the appellants established good cause for not appearing at their original hearings.

How to Request a Reopening of a Defaulted Fair Hearing

A reopening request can be made by mail, by fax, or by telephone to OAH's Albany office, or in-person at OAH's Brooklyn and Albany offices. See OTDA's website: Request an Adjournment or Reopening.

Advocacy Tip

Where possible, appellants should speak (by telephone or in person) to OAH staff rather than submitting their requests in writing because good cause determinations often depend on appellants' credibility. OAH staff must evaluate whether to believe the excuses offered by appellants for missing their originally scheduled Fair Hearings.

As the United State Supreme Court explained in its landmark decision in Goldberg v Kelly, 397 U.S. 254, 269 (1970) in the context of Fair Hearings:

"Written submissions are an unrealistic option for most recipients, who lack the educational attainment necessary to write effectively and who cannot obtain professional assistance. Moreover, written submissions do not afford the flexibility of oral presentations; they do not permit the recipient to mold his argument to the issues the decision maker appears to regard as important. Particularly where credibility and veracity are at issue, as they must be in many termination proceedings, written submissions are a wholly unsatisfactory basis for decision" (emphasis supplied).

For information about credibility issues, see Credibility Determinations by ALJs.

Ideally, appellants who speak with OAH staff by telephone should ask what kind of documentation might support their claim of good cause. Appellants should then ask OAH staff to allow them an opportunity to mail, e-mail or fax any such documentation to OAH before the staff concludes that the appellants failed to establish good cause for reopening their defaulted Fair Hearings.

Where no documentation is available, appellants should remind OAH staff that "the lack of documentary evidence is not a per se basis for finding an appellant's testimony incredible." An appellant's "uncorroborated testimony" may be deemed "credible, especially when it is found to be uncontradicted or internally consistent." April 13, 2005 OAH Memorandum. See Credibility Determinations by ALJs.

Restoration and Reinstatement of Previous Aid-Continuing Directives

If Medicaid appellants or their authorized representatives contact OAH within ten days of the postmark of the Fishman Default Letter, their Fair Hearings will be rescheduled and their aid-continuing Medicaid benefits will continue uninterrupted until the Fair Hearing Decisions are issued.

For all other appellants, including those Medicaid appellants who do not timely respond to the Fishman Default Letter, "aid-continuing . . . shall discontinue on the date the fair hearing request is abandoned." 18 NYCRR § 358-5.5(e).

However, if an aid-continuing Fair Hearing request is reopened because good cause has been established, "aid-continuing will be restored

• "retroactively to the date of abandonment" if the reopening request is "made within 60 days from the scheduled date of the fair hearing," or

• "prospectively from the date of the request to reopen" if the reopening request is "made 60 days or more from the scheduled date of the fair hearing."

18 NYCRR § 358-5.5(e)(1) and (2).

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