New York Codes, Rules and Regulations
Title 14 - DEPARTMENT OF MENTAL HYGIENE
Chapter XIII - Office of Mental Health
Part 503 - Adjudicatory Proceedings
Section 503.4 - General hearing procedures

Universal Citation: 14 NY Comp Codes Rules and Regs ยง 503.4

Current through Register Vol. 46, No. 39, September 25, 2024

This section applies to the conduct of hearings described in section 503.3 of this Part unless a conflict exists between the provisions of this section and those of sections 503.5 -503.9 of this Part, in which case the provisions of those sections shall be controlling.

(a) Notice of intent.

(1) The commissioner or his or her designee shall issue a notice of the Office of Mental Health's decision to take action, which shall include:
(i) notice of the proposed action and a general description of the reasons therefor; and

(ii) notice of the right to be heard and the opportunity to request a hearing on the matter.

(2) The proposed action shall become effective 10 days after service of the notice unless, within that time period, the party files with the commissioner a written request for a hearing.

(b) Order and notice of hearing.

(1) Within 30 days of receipt of a request for a hearing, the commissioner shall order an administrative hearing to be held before the commissioner or his or her designated hearing officer.

(2) A written notice of hearing shall be issued which includes:
(i) a statement of the date, time and place of the hearing;

(ii) a statement of the legal authority and jurisdiction under which the hearing is to be held;

(iii) a reference to the particular sections of the statutes and regulations involved, if any;

(iv) a short and plain statement of matters asserted; and

(v) a statement that interpreter services shall be made available, at no charge, to non-English speaking persons or persons with hearing impairments.

(3) Notice of hearing shall be served in person or mailed by registered or certified mail, at least 10 days prior to the hearing date, to the person or facility to be notified at the last known address.

(c) Adjournment. All parties should be prepared to proceed at the time and date scheduled. Except for good cause shown, requests for adjournments shall be in writing and shall be filed with the hearing officer at least three days prior to the commencement of the hearing. Except as provided in section 31.16 (b)(4) of the Mental Hygiene Law, requests for adjournments shall be granted at the discretion of the hearing officer, who shall notify all parties of the new time and date.

(d) Answer or responsive pleading.

(1) An answer or responsive pleading to the matters asserted in the notice of hearing must be filed where required by law or may be filed at the discretion of a party, but in either case not less than three days prior to the hearing. Any such answer or responsive pleading shall be signed by the party or the party's attorney and shall specify which allegations are admitted, which allegations are denied and which allegations a party has insufficient information upon which to form a belief.

(2) The hearing officer may require a party to submit an answer or responsive pleading.

(e) Service and filing of papers.

(1) Service of all papers shall be made on all parties, or if a party is represented by an attorney, upon the party's attorney, and a copy filed with the commissioner or the hearing officer, as the case may be.

(2) Except as otherwise provided in this Part, service of papers may be made in any of the following ways:
(i) by personal delivery to the party or his or her attorney or a person of suitable age and discretion at the attorney's office;

(ii) by mailing, postage prepaid, to the address last designated by the party or his or her attorney for the receipt of papers or, if no address is designated, at the recipient's last known address;

(iii) by overnight delivery service to the address last designated by the party or his or her attorney for the receipt of papers or, if no address is designated, at the recipient's last known address; or

(iv) by electronic transmission to the telephone number or other station designated by the party or his or her attorney for that purpose, where the party or his or her attorney has consented to the receipt of papers by electronic transmission. Unless a party provides written notice to the contrary, a party will be deemed to have consented to accepting service by electronic transmission where a telephone number for such transmission appears on letterhead used by the party in correspondence with the Office of Mental Health.

(3) Service of papers by mail shall be complete upon mailing. If these regulations calculate a party's time to respond from the date of service and service is by mail, the responding party shall have five additional days to respond.

(4) Service of papers by overnight delivery shall be complete upon depositing the papers, properly wrapped, with or in an official depository of the overnight carrier prior to the last designated time for such deposit which will permit next day delivery. If these regulations calculate a party's time to respond from the date of service and service is by overnight delivery, the party shall have one additional business day to respond.

(5) Service of papers by electronic transmission shall be complete upon receipt by the sender of a signal from the recipient's equipment that the transmission has been received and the mailing of a copy of the papers, postage prepaid, to the address last designated by the recipient for the receipt of papers or, if no address is designated, at the recipient's last known address.

(6) Service upon the commissioner or the Office of Mental Health shall be made by serving the Office of Mental Health Counsel, New York State Office of Mental Health, 44 Holland Avenue, Albany, NY 12229.

(7) Filing may be accomplished by service upon the commissioner, as described above, or upon the hearing officer, as the case may be. However, for the purpose of complying with any time limit imposed by this Part, filing shall be complete only upon actual receipt by the commissioner or the hearing officer.

(f) Discovery. There shall be no discovery, except as agreed upon by all parties or otherwise provided by this Part.

(g) Hearing officer.

(1) The hearing officer shall conduct the hearing in a fair and impartial manner.

(2) Unless otherwise authorized by law, a hearing officer shall not communicate, directly or indirectly, in connection with any issue that relates in any way to the merits of an adjudicatory proceeding pending before the hearing officer with any person except upon notice and opportunity for all parties to participate.

(3) The hearing officer shall have the power to:
(i) rule upon applications and requests, including requests for adjournments;

(ii) set dates, times and places of hearings;

(iii) administer oaths and affirmations;

(iv) issue subpoenas, which shall be regulated by the Civil Practice Law and Rules, requiring the attendance and testimony of witnesses and the production of books, records, contracts papers and other evidence;

(v) examine witnesses;

(vi) admit and exclude evidence;

(vii) limit the number of times any witness may testify, repetitious examination or cross-examination, and the amount of corroborative or cumulative testimony;

(viii) request and/or hear oral arguments;

(ix) request written arguments;

(x) order the parties to appear for a prehearing conference to consider matters which may simplify the issues or expedite the proceedings; and

(xi) do all acts and take all measures necessary for the maintenance of order and the efficient conduct of the hearing.

(4) No hearing officer shall preside who has any interest in or bias with respect to the matter involved in the proceeding.
(i) If a party has a good faith basis to believe that a hearing officer cannot render a fair and impartial decision in a particular case, such party may request that the hearing officer recuse himself or herself. Such request must be made in writing and must articulate the specific grounds on which the party claims interest or bias.

(ii) Upon receipt of a request for recusal, the hearing officer shall expeditiously determine whether or not to recuse himself or herself. If the hearing officer determines not to recuse himself or herself, he or she shall issue a written decision stating the reasons therefor and shall serve a copy of the decision on all parties.

(iii) Upon written application of any party filed within five days of service of the hearing officer's determination, such a termination shall be subject to review by the commissioner. The commissioner or his or her designee shall review the matter as soon as practicable and shall issue a written determination, which shall be made part of the record.

(5) Upon being notified that a hearing officer declines or fails to serve, or if it becomes impractical for the hearing officer to continue the hearing, or in the case of death, resignation or removal of the hearing officer, a successor hearing officer shall be designated by the commissioner to continue the proceeding, unless it is shown that substantial prejudice to the parties will result therefrom.

(6) The designation of a hearing officer shall be in writing and made a part of the record.

(h) The hearing.

(1) Appearances.
(i) A party may appear in person or by an attorney. If a party appears by an attorney, service of papers shall be made upon the attorney.

(ii) In the event a party or its representative does not appear at a scheduled hearing without prior notice of an inability to appear, the hearing officer may recommend to the commissioner a default decision against that party.

(2) Consolidation and severance.
(i) In proceedings which involve common questions of fact, the hearing officer, upon his or her own motion, or upon the motion of any party, may order a consolidation of actions or a joint hearing of any or all issues to avoid unnecessary delay and cost.

(ii) The hearing officer may order a severance of the hearing and hear separately any issue in the proceeding to avoid prejudice or inconvenience.

(3) Conduct of hearing and evidence.
(i) The hearing officer shall not be bound by technical or formal rules of procedure or common law or statutory rules of evidence, except that the rules of privilege recognized, by law shall be respected. The determination of privilege shall be founded upon sufficient legal evidence. Objections to evidentiary offers may be made and shall be noted in the record. Subject to these requirements, where appropriate, a hearing officer may, for the purpose of expediting hearings, and when the interests of parties will not be substantially prejudiced thereby, accept the submission of all or part of the evidence in written form.

(ii) Each witness shall be sworn or shall give an affirmation.

(iii) Each party shall have the right to present evidence and be afforded an opportunity to require the production of witnesses and evidence in manner and form as prescribed by the Civil Practice Law and Rules, to cross-examine witnesses, to examine evidence produced against them, and to have subpoenas issued on their behalf.

(iv) Official notice may be taken of all facts of which judicial notice could be taken and of other facts within the specialized knowledge of the Office of Mental Health.

(v) If evidence at a hearing relates to the identity, condition or clinical record of a patient, the hearing officer may exclude all persons from the room except parties to the proceeding, their counsel, and the witnesses. The record of this proceeding shall not be available to anyone outside the Office of Mental Health, other than a party to the proceedings or his or her counsel, except by order of a court of record.

(vi) All parties shall have the right to make oral arguments before a hearing officer, which shall be included in the record of the hearing. Such oral argument may be curtailed at the discretion of the hearing officer, provided that a party shall be given the opportunity to submit his or her argument in writing.

(vii) Memoranda of law may be required by the hearing officer, or may be submitted by any party. The hearing officer will fix the time within which memoranda of law may be filed. Memoranda of law received subsequent to the time specified need not be considered.

(4) Record.
(i) A verbatim recording shall be made of the proceedings.

(ii) A transcription of the record shall be made available to any party upon request and payment of the cost of the transcription.

(i) Hearing officer's report.

(1) Unless otherwise agreed to by all parties, the hearing officer shall be set forth his or her findings and recommendations for action by written report to the commissioner within 30 days of receipt of the entire transcript of the hearing. The hearing officer shall serve a copy of the report on all parties.

(2) The record of the hearing and the hearing officer's report, shall be transmitted to the commissioner for final determination and order.

(j) Final determination.

(1) Within 10 days of the receipt of the record of the hearing, the commissioner shall make a final determination.

(2) The commissioner's determination shall be in writing. In the event that the final determination includes findings of fact or conclusions of law that conflict with the findings, conclusions or recommended decision of the hearing officer, the reasons therefor shall be set forth in writing.

(3) Copies of the commissioner's final determination shall be served upon all parties to the proceeding. At least one such copy shall be maintained on file in the Office of Mental Health.

(k) Waiver of rules. Except as otherwise provided by law, any of the rules in this Part may be waived by agreement of the parties or, if a hearing has convened, by agreement of the parties with the consent of the hearing officer.

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