Current through Register Vol. 46, No. 39, September 25, 2024
(a) Following a determination that the
evidentiary packet is sufficient and the scheduling of an administrative
disqualification hearing, an administrative disqualification hearing will be
conducted in accordance with the requirements of this section.
(b) Where factual issues arise from the same
or related circumstances, a consolidated administrative disqualification
hearing will be held for an FS-IPV and a public assistance-IPV. All evidence,
testimony and proof relating to the consolidated cases will be presented
together, but separate findings will be made with respect to each separately
alleged intentional program violation.
(c) An administrative disqualification
hearing scheduled pursuant to this Part will be adjourned when:
(1) the request for such adjournment is made
at least 10 days in advance of the scheduled hearing date; or
(2) the request for such adjournment is made
less than 10 days prior to the scheduled hearing date and the individual
demonstrates good cause for requesting the adjournment.
The hearing cannot be adjourned for more than a total of
30 days.
(d)
Rights in the administrative disqualification hearing process. The accused
individual, or such individual's representative, must have adequate opportunity
to:
(1) examine the contents of the
individual's case file, and all documents and records to be used by the social
services district at the hearing, at a reasonable time before the date of the
hearing and during the hearing;
(2)
present the case himself or herself, or with the aid of an authorized
representative;
(3) bring
witnesses;
(4) establish all
pertinent facts and circumstances;
(5) advance any arguments without undue
influence; and
(6) question or
refute any testimony or evidence including the opportunity to cross-examine
adverse witnesses.
(e)
Conduct of an administrative disqualification hearing.
(1) The hearing officer must advise the
accused individual that he or she may refuse to answer questions during the
hearing.
(2) The burden of proving
that an accused individual has committed an intentional program violation is on
the social services district.
(3)
When an individual has been convicted in a State or Federal court of a public
assistance-IPV, and such conviction was based on a plea of guilty, and such
conviction was based on the same set of facts which will be the subject of the
administrative disqualification hearing, and such individual was not advised on
the record in the court proceeding of the disqualification provisions of this
Part:
(i) neither the conviction itself nor
the records of the court proceeding may be used in any manner in the
administrative disqualification hearing; and
(ii) the existence of the court proceeding
may not be disclosed in any manner to the hearing officer by the office or
social services district nor by any person acting on behalf of the office or
social services district nor by any witness presented by any social services
official.
(4) All
provisions in Part 358 of this Title concerning the conduct of fair hearings
which are not inconsistent with any of the specific provisions of this section
are applicable to administrative disqualification hearings.
(f) Decision after an
administrative disqualification hearing.
(1)
The decision after an administrative disqualification hearing must be based
exclusively on clear and convincing evidence and other material introduced at
the hearing which demonstrates that an individual committed and intended to
commit one or more intentional program violations.
(2) The decision after an administrative
disqualification hearing must specify the reasons for the decision, identify
the supporting evidence, identify the pertinent statutes or regulations and
respond to reasoned arguments made by the individual or his or her
representative.
(3) The department
must conduct the hearing, arrive at a decision and forward the decision to the
social services district for implementing action within 90 days of the date of
the notice of administrative disqualification hearing. In the event of a
client-requested adjournment, this time limit will be extended by the number of
days the hearing was postponed.
(g) Default of an administrative
disqualification hearing.
(1) If an accused
individual cannot be located or fails to appear at an administrative
disqualification hearing scheduled pursuant to this Part, the opportunity to
appear at the hearing may be considered to be defaulted by such individual
except as follows:
(i) the individual contacts
the department within 30 days after the date of the hearing decision and claims
good cause for failure to appear based on nonreceipt of the notice of
administrative disqualification hearing or the notice of administrative
disqualification hearing was returned as undeliverable. In such situations, a
hearing will be scheduled at which the commissioner or the commissioner's
designee will determine whether the individual had good cause for failing to
appear at the administrative disqualification hearing. Good cause for failing
to appear based on nonreceipt of the notice of administrative disqualification
hearing will be deemed to exist when the individual establishes at the hearing
that the failure to receive the notice of administrative disqualification
hearing was not caused by the individual. If good cause for failing to appear
is not established, the hearing decision will remain valid. If good cause is
established, the recipient and the agency will have an opportunity to present
any evidence or testimony concerning the agency's allegation that the recipient
committed an intentional program violation. After consideration of such
evidence and/or testimony, the prior hearing decision will be vacated and a new
hearing decision will be issued; the hearing officer who originally presided at
the hearing may conduct the new hearing; or
(ii) the individual contacts the department
within 10 days after the date of the scheduled hearing and claims good cause
for failing to appear. In such a case, a hearing will be scheduled at which the
commissioner or the commissioner's designee will determine whether the
recipient had good cause for failing to appear at the administrative
disqualification hearing. If good cause for failing to appear is not
established, the hearing decision will remain valid. If good cause is
established, the recipient and the agency will have an opportunity to present
any evidence or testimony concerning the agency's allegation that the recipient
committed an intentional program violation. After consideration of such
evidence and/or testimony, the prior hearing decision will be vacated and a new
hearing decision will be issued; the hearing officer who originally presided at
the hearing may conduct the new hearing.
(2) If the opportunity to appear at a hearing
has been defaulted by the accused individual in accordance with paragraph (1)
of this subdivision, the hearing must be conducted without the accused
individual being present. Even though the accused individual is not present,
the hearing officer is required to consider the evidence carefully and
determine if an intentional program violation was committed based on clear and
convincing evidence.
(h)
Access to record of proceedings. The transcript or recording of testimony,
exhibits, or other official reports introduced at the hearing, together with
all papers and requests filed in the proceeding, and the original or a true
copy of the decision after an administrative disqualification hearing must be
made available to the individual or to the individual's representative at a
reasonable time and place.
(i)
Review of disqualification hearing decisions. A decision that an intentional
program violation has been committed cannot be reversed by a subsequent fair
hearing held pursuant to Part 358 of this Title. However, the disqualified
individual is entitled to seek relief in a court having appropriate
jurisdiction pursuant to article 78 of the Civil Practice Law and Rules. The
period of disqualification may be subject to stay or other injunctive remedy
ordered by such a court, but any period for which sanctions are imposed shall
remain in effect, without possibility of administrative stay, unless and until
the finding upon which the sanctions were imposed is subsequently reversed by a
court of appropriate jurisdiction.
