Current through Register 1531, September 27, 2024
(1)
Preamble. 801 CMR 1.02 of the Standard Adjudicatory
Rules of Practice and Procedure is a self- contained segregable body of
regulations of general applicability for proceedings in which formal rules
cannot be utilized or federal fair hearing procedures are applicable. An Agency
must determine for any class of hearings whether to hold hearings under
801 CMR 1.01, Formal
Hearings, or 801 CMR 1.02. Agencies shall determine based on such factors as:
the volume of cases held; whether claimants are represented by counsel; the
complexity of the issues; or the applicability of Federal fair hearings
procedures. All notices from which an Adjudicatory Proceeding can be claimed
shall state which rules apply, whether formal under
801 CMR 1.01, or
informal under 801 CMR 1.02. In addition, all notices shall contain a notice
printed in English, Spanish, Portuguese, Italian, Greek, French and Chinese
that informs the reader that the document is important and should be translated
immediately.
(2)
Scope,
Construction and Definitions.
(a)
Scope and
Construction. 801 CMR 1.02 shall apply to Adjudicatory Proceedings
involving review of action or inaction of an Agency or of a Veterans' agent
with respect to a claim for benefits or services. Without intending to limit
its applicability, 801 CMR 1.02 shall apply to all hearings held pursuant to
the fair hearing requirements of 7 CFR 273; 42 USC 503 (a)(3) and M.G.L. c.
151A, §§ 39 and 41. 801 CMR 1.02 shall also apply to the hearing
procedures of any other Agency which is, in whole or in part, governed by the
requirements of similar law, and to classes of hearings of any Agency for which
801 CMR 1.02 establishes minimum procedural protections for applicants or
recipients in such proceedings, and shall in no way be construed to limit the
protections afforded by state or federal law.
(b)
Definitions.
Refer to all definitions included in M.G.L. c. 30A and in
801 CMR 1.01. In
addition, the following words when used in 801 CMR 1.02 shall have the
following meanings:
Applicant. An individual who
has applied or been denied the opportunity to apply for benefits available
under any program administered by an Agency, H.C.C. or veterans' agent
appointed pursuant to M.G.L. c. 115, § 3.
ASAP. An Aging Services Access Point
organized to provide services pursuant to a contract with The Executive Office
of Elder Affairs.
Benefits. Any benefit to an individual
or service administered or rendered by an Agency.
Case Manager. The Person who performs
case management services.
DALA. The Division of Administrative
Law Appeals.
Division of Hearings (DTA). The
Division of Hearings for the Department of Transitional Assistance.
Electronic Medium. Any device used to
preserve or transmit information electronically, including but not limited to
telephone, e-mail and facsimile.
Hearing. An Adjudicatory Proceeding
held under these informal rules at 801 CMR 1.02.
Institution. Any licensed hospital,
nursing home or public medical institution.
Presiding Officer. The individual(s)
authorized by law or designated by the Agency or DALA to conduct an
Adjudicatory Proceeding.
Recipient. A Person or family
receiving benefits under a program administered by an Agency, ASAP, or
Veterans' Agent pursuant to M.G.L. c. 115, § 3.
(3)
Representation.
(a)
Appearance. An individual may appear in his or her own
behalf, or may be accompanied, represented and advised by an Authorized
Representative.
(b)
Notice. An Authorized Representative shall appear by
filing a written notice with the Agency or Presiding Officer. Notice shall
contain the name, address and telephone number, as well as facsimile number and
e-mail address if available, of the Authorized Representative and of the Party
represented, and may limit the purpose of the appearance. The filing by an
attorney of any pleading, motion or other paper shall constitute an appearance
by the attorney who signs it, unless the paper states otherwise.
(c)
Powers. An
Authorized Representative may exercise on a Party's behalf any rights and
powers vested in that Party by
801 CMR 1.00.
(4)
Time.
Papers shall be filed according to the procedures set forth in
801 CMR 1.01(4)(a) through
(e).
(5)
Filing. All
papers filed with the Agency, its designee, or DALA should contain the name,
address, telephone number and signature of the sender or Authorized
Representative. Papers which do not contain all of this information shall be
accepted for filing if they contain sufficient identifying information so they
can be placed in the appropriate file.
(6)
Initiation of Adjudicatory
Proceedings.
(a)
Notice of Agency, ASAP, or Veterans' Agent Action.
1.
Requirements.
Notice of action by an Agency, ASAP or Veterans' agent to deny, terminate,
reduce, or suspend services or Benefits to a Recipient or to deny Benefits or
services to an applicant shall include but not be limited to:
a. clear and plain statement of the action to
be taken;
b. the date on which the
action shall become effective;
c.
an explanation of reasons for the action;
d. the regulation or other legal authority on
which such action is based;
e. the
telephone number and address where further information may be
obtained;
f. an explanation of the
applicant's or recipient's right to request a hearing (including the time
limits and manner for request);
g.
a copy of the form used to request a hearing;
h. an explanation of the circumstances, if
any, under which Benefits or services will continue pending an Adjudicatory
Proceeding;
i. an explanation of
the right to be represented, including if applicable, the availability of
assistance; and
j. the mailing
address, telephone number and office hours of the office responsible for
receiving and/or hearing appeals from the Agency action.
2.
Exceptions for
ASAP.
a. If a Recipient
voluntarily assents in writing to a termination, reduction or suspension of
services, the ASAP shall implement the change in service in accordance with the
terms of that assent, without sending notice of action. ASAP shall use a
written assent format provided by Elder Affairs.
b. If a recipient is hospitalized or
otherwise institutionalized, ASAP shall suspend the Recipient's services as
soon as feasible, without sending notice of action. Upon discharge, the ASAP
shall reassess the Recipient's service needs.
c. If an ASAP has actual knowledge that a
Recipient is temporarily absent from the ASAP service area and is therefore
unavailable to receive services, the ASAP may suspend services for the period
of the Recipient's absence without sending notice of action.
(b)
Grounds
for Appeal. A right to request an Adjudicatory Proceeding shall
arise when controversy exists which by law or Agency regulation requires an
Adjudicatory Proceeding, or when a Person is aggrieved by an Agency, ASAP, or
veterans' agent action or failure to act.
(c)
Adjudicatory Proceedings -
How Taken. A Person entitled to an Adjudicatory Proceeding or his
or her Authorized Representative must request a hearing in writing in the form
prescribed, or on the form provided by the Agency or the Presiding Officer, and
must sign and date the request. At the discretion of the Agency, the request
for hearing may be filed by Electronic Medium. The requesting Party must file
with the Agency or the Presiding Officer within the time limit prescribed by
law. In the absence of any time limit, the requesting Party must file within 60
days after receipt of the notice of action or, for failure to act, within 120
days from application, unless the Agency has established a longer
period.
(d)
Continuation of Benefits Pending Appeal. Benefits
shall continue when required by applicable statute or regulation, if the
Recipient or Institution has met the standard set forth by applicable statute
or regulation.
(e)
Termination of Continued Benefits. Benefits continued
in accordance with 801 CMR 1.02(6)(d) shall be terminated if:
1. a determination is made at the hearing
that the sole issue is a challenge to the validity of a particular law or
regulation; or
2. a change
affecting the Recipient's Benefits occurs subsequent to the Adjudicatory
Proceeding request which makes the previously filed Adjudicatory proceeding
request moot, and the Recipient fails to request a hearing on the subsequent
matter within the applicable time period; or
3. a determination is made at the hearing
that the Agency action to terminate Benefits was correct.
(7)
Special
Requests.
(a)
Withdrawals. With the approval of the Agency or the
Presiding Officer, a Petitioner may withdraw his or her request for an
Adjudicatory Proceeding in a writing signed by the Petitioner or his or her
Authorized Representative.
(b)
Emergency Scheduling. The Agency or the Presiding
Officer, on its own or by request of a Party, may for good cause order an
accelerated hearing.
(c)
Other Requests. A Party may request rulings or relief
in writing at any time or orally during a hearing. After providing notice to
the other Parties, the Agency or Presiding Officer shall rule on the request
with or without a hearing.
(8)
Discovery.
(a)
Generally.
Parties to an Adjudicatory Proceeding are encouraged to engage in voluntary
discovery.
(b)
Examination of File. At any time after an Adjudicatory
Proceeding has been requested, a Party and its Authorized Representative shall
have adequate access to and an opportunity to examine and copy or photocopy the
entire content of his or her case file and all other documents to be used by
the Agency, ASAP, or Veterans' Agent at the hearing. The cost of photocopying
shall be determined from time to time by the Executive Office for
Administration and Finance.
(9)
Group Hearings.
(a)
Purpose. A group
hearing may be held if it appears from the request for a hearing or other
written information submitted by the Parties that the matters involve questions
of fact which are identical, or the sole issue involves federal or state law or
policy, or changes in federal or state law. For these purposes, a change in
federal or state law shall mean any change in standards governing eligibility
or limitation in the amount of time for which Benefits or services are
provided, affecting a class of Recipients or Applicants and promulgated by
state or federal law or regulation.
(b)
Severance of Individual
Hearing. If, at any stage of such group hearing, the Presiding
Officer finds that any individual appeal involves questions of fact unique to
the individual Petitioner, such as the applicability of the law change to such
Petitioner, the Presiding Officer shall sever the appeal and hear it
individually.
(10)
Hearings.
(a)
Adjustment of Matters Related to Hearing. A filed
request for hearing does not prohibit an adjustment in the matters at issue
prior to the hearing. If as a result of an adjustment, the Petitioner is
satisfied and wishes to withdraw all or part of his or her appeal, he or she
shall file a signed withdrawal in writing with the Agency or the Presiding
Officer in accordance with 801 CMR 1.02(7)(a). A hearing shall not be delayed
or canceled because of a proposed adjustment under consideration, unless the
Petitioner requests a delay or cancellation.
(b)
Submission without a
Hearing. The Petitioner may elect to waive a hearing and to submit
any documents without appearing at the time and place designated for the
hearing. Submission of a case without a hearing does not relieve the Parties
from supplying all documents supporting their allegations or defenses.
Affidavits and stipulations may be employed to supplement other documentary
evidence in the record.
(c)
Notice of Hearing. The notice of the hearing must
include the date, time, and place of the hearing, an explanation of the hearing
procedure and an explanation of the Party's right to have an Authorized
Representative present. Unless already provided in the notice of action under
801 CMR 1.02(6)(a)(1), the notice shall provide sufficient notice of the issues
involved so that the Parties may have a reasonable opportunity to prepare and
present evidence and argument. If the issues cannot be fully stated in advance
of the hearing, they shall be fully stated as soon as practicable. In all cases
of delayed statement, or where subsequent amendment of the issues is necessary,
sufficient time shall be allowed after full statement or amendment to afford
all Parties reasonable opportunity to prepare and present evidence and argument
respecting the issues.
(d)
Dismissals for Failure to Appear. If the Petitioner
fails to appear at the hearing, the Presiding Officer shall notify the
Petitioner in writing that a default will be entered against him, unless within
ten days from the date of said notice he or she files a motion for a
rescheduled hearing, and the motion is granted. In the event a Petitioner fails
to appear at the time and place of a granted rescheduled hearing, the appeal
shall be dismissed and shall include an explanation of the manner in which
dismissals may be vacated. Any motions to vacate a dismissal must be in
writing, signed by the Petitioner or his or her Authorized Representative, and
directed to the Presiding Officer. Dismissals shall be vacated only for good
cause shown.
(e)
Dismissal for Failure to Prosecute. The Agency or the
Presiding Officer may order dismissal for failure to prosecute in accordance
with the provisions of
801 CMR
1.01(7)(g)2.
(f)
Presiding Officer's Duties
and Powers at Hearings. The Presiding Officer shall have the duty
to conduct a fair hearing to ensure that the rights of all parties are
protected; to define issues; to receive and consider all relevant and reliable
evidence, including examining witnesses and authorizing the Agency to pay for
an independent medical examination; to exclude irrelevant or unduly repetitious
evidence; to ensure an orderly presentation of the evidence and issues; to
ensure a record is made of the proceedings; to reach a fair, independent and
impartial decision based upon the issues and evidence presented at the hearing
and in accordance with the law; and to reconvene the hearing with notice to the
parties at any time prior to the decision being issued.
(g)
Rights and Duties of
Parties.
1. Each Party may
present his or her own case, or may be assisted by an Authorized Representative
at his or her expense. The Party, or Authorized Representative, shall have a
right to:
a. present witnesses;
b. present and establish all relevant facts
and circumstances by oral testimony and documentary evidence;
c. advance any pertinent arguments without
undue interference;
d. question or
refute any testimony, including an opportunity to cross-examine adverse
witnesses; and
e. examine and
introduce evidence from his or her case record, and examine and introduce any
other pertinent documents.
2. The Agency, in addition to the rights and
duties above, at 801 CMR 1.02(10)(g)1.:
a. is
responsible for submitting at the hearing all documented information on which
its action or motions are based;
b.
shall introduce into the hearing only material which pertains to the issues;
and
c. may designate and may send a
staff person to the hearing to testify as to its action or inaction. In cases
involving the judgment of the Case Manager relative to reduction, suspension,
or termination of services, the Case Manager, or a person authorized to
represent the Case Manager, shall be present at the hearing.
(h)
Evidence.
1.
General. The Agency or Presiding Officer shall admit
and consider evidence in accordance with M.G.L. c. 30A, § 11(2).
2.
Presented at
Hearing. Except as the Agency, its designee, or Presiding Officer
may otherwise order, any documentary evidence on which a decision is based must
be presented either at the hearing or, in cases submitted without a hearing
pursuant to 801 CMR 1.02(10)(b), before notification that the case is ready for
decision. Copies of any evidence shall be provided to all other
Parties.
3.
Oral
Testimony. Oral testimony shall be given under oath or
affirmation. Witnesses shall be available for examination and
cross-examination.
4.
Stipulations. Stipulations may be used as evidence in
accordance with the provisions of
801 CMR
1.01(10)(b).
5.
Additional
Evidence. The Agency or the Presiding Officer may in any case
require any Party or the Agency, with appropriate notice to all other Parties,
to submit additional evidence on any relevant matter.
(i)
Subpoenas. The
Agency or the Presiding Officer may issue, vacate or modify subpoenas in
accordance with M.G.L. c. 30A, § 12. Parties may issue subpoenas in
accordance with M.G.L. c. 30A, § 12(3). Witnesses may petition the Agency
to vacate or modify subpoenas in accordance with M.G.L. c. 30A, §
12(4).
(j)
Scheduling. Upon receipt of a request for a hearing,
the Agency or Presiding Officer shall within a reasonable time register the
appeal, set a date and designate a site for a hearing, and notify all Parties.
If the Petitioner has a disability or is otherwise unable to appear at the
designated site, the Petitioner may request that the hearing be held at another
convenient location. The Agency or Presiding Officer may grant such request.
(k)
The Hearing
Record.
1.
Contents
of the Record All documents and other evidence offered or taken
shall become part of the record, which shall be the exclusive basis of the
decision. The record shall at reasonable business hours be available at the
offices of the Agency or other designated location for inspection by the
parties.
2.
Stenographic or Taped Record. All evidence and
testimony at the hearing shall be recorded either stenographically or by
Electronic Medium. The Presiding Officer shall arrange for verbatim transcripts
of the proceedings to be supplied at cost to any Party upon request, at the
Party's own expense. The Agency by rule may elect to supply a copy of the tape,
disc or other audio-visual preserving medium employed at the proceeding to
record its events in lieu of a verbatim transcript at the Party's own expense.
The Agency or the Presiding Officer may permit any Party to maintain his or her
own stenographic or electronic record.
(l)
Continuances.
The Agency or the Presiding Officer may continue a hearing by notifying all
parties and authorized representatives of the date, time and place of the
continued hearing.
(11)
Decisions. Upon completion of the hearing, the Agency
or Presiding Officer shall render a written decision as promptly as
administratively feasible, in accordance with M.G.L. c. 30A, §
11(8).
(12)
Appeals.
(a)
General. Within the time prescribed by law or
regulation, or within ten days where no other time limit is prescribed, any
Party entitled to further administrative review of the decision at an Agency
which has a review process, may file a request for review with the appropriate
reviewing Agency. Upon receipt of motion for administrative review, the
reviewing Agency shall notify all other parties of any hearing
scheduled.
(b)
DALA
Appeals. For any decision adverse to a Petitioner, DALA shall send
the Petitioner a copy of the decision with a notice informing the Petitioner of
his or her right to appeal. The notice should specify:
1. that the Petitioner must make a written
request for appeal within 15 days of the date DALA mailed the notice;
2. that the Petitioner must send the written
request for hearing to DALA;
3.
that the Petitioner must ask for a new hearing in order to have a new hearing;
and
4. that unless the Petitioner
requests a new hearing, the appeal shall be limited to a review of the record
to determine if the decision was supported by substantial evidence.