Informal/Fair Hearing Rules

(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. 12/25/98 (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). 12/25/98 (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. 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 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. 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. 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). 12/25/98 (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. 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 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.