Fair Hearings Training

1. Fair Hearings Training Presented by University of Miami School of Law, Children & Youth Law Clinic, Caitlin Currie, Shana Schoem and Seida Wood

2. Purpose of this Training… • To provide GAL attorneys with a general overview of the practices, procedures and protocols of the DCF Administrative Fair Hearing Process in Florida in cases involving the denial, termination or reduction of government benefits, including Road-to- Independence, Medicaid and Medicaid Waiver, food stamps, and cash assistance.

3. Common Law Beginnings • “…to cut off a welfare recipient in the face of . . `brutal need' without a prior hearing of some sort is unconscionable, unless overwhelming considerations justify it.“ -Goldberg v. Kelly, 397 U.S. 254, 261 (1970)

4. (Some) Federal Law • 45 C.F.R. 205.10: • A State plan under title I, IV-A, X, XIV, or XVI (AABD) of the Social Security Act shall provide for a system of hearings under which: (1) The single State agency responsible for the program shall be responsible for fulfillment of hearing provisions which shall provide for: (i) A hearing before the State agency, or (ii) An evidentiary hearing at the local level with a right of appeal to a State agency hearing. Where a State agency adopts a system of evidentiary hearings with an appeal to a State agency hearing, it may, in some political subdivisions, permit local evidentiary hearings, and in others, provide for a single hearing before the State agency. Under this requirement hearings shall meet the due process standards set forth in the U.S. Supreme Court decision in Goldberg v. Kelly, 397 U.S. 254 (1970) and the standards set forth in this section.

5. Types of Hearings • Medicaid • Road-to-Independence • Food Stamps • Temporary Assistance for Needy Families • *Medicaid Waiver-Agency for Persons with Disabilities

6. Fair Hearing Office • All correspondence must be conducted with the Department of Children and Families Tallahassee Office of Appeal Hearings at the following address: Office of Appeal Hearings Bldg. 5, Second Floor 1317 Winewood Blvd. Tallahassee, FL 32399-0700 Tel: (850) 488-1429 Fax: (850) 437-0662 Email: appeal_hearings@dcf.state.fl.us

7. Requesting a Fair Hearing • Request can be either verbally or in writing. • Fair hearing requests filed within ten days of the Notice of Case Action may qualify for reinstatement (continuation) of benefits when there has been a reduction or termination of benefits. • The request for the fair hearing shall be received no later than 30 calendar days from the date the notice was mailed or hand-delivered to the individual.

8. Pre-hearing Fact Finding/Settlement Negotiation • An agency supervisor must review the action under appeal. • The purpose of supervisory review is to determine if the appeal is resolvable without proceeding to hearing. • If the review results in resolution of the appeal, the petitioner must withdraw the appeal.

9. Determine the policy relied upon by the Department in making the decision at issue. Be sure to acquire all documentation relied on by the Department in making the decision. In addition to relevant documentation relied on by the Department, it is important to acquire any other documents relevant to the denial. Determine who has the burden of proof at the hearing. All evidence that will be relied on during the hearing must be shared with opposing counsel within seven days of the date of the hearing. Any delay in sharing evidence could result in the hearing officer reconvening the hearing at a later time. Preparing for the Hearing

10. Notice of Hearing • Notice of Hearing will be issued fourteen days before the hearing including time, place and location of hearing. • Hearings can be held telephonically or at a physical location near where the Petitioner resides. The type of hearing will be indicated on the Notice.

11. Motions for Continuance • In most Fair Hearing Appeals, either party can request a continuance for good cause. • Any other continuance will be granted only in emergency circumstances. • However, there is a new SEVEN DAY Rule for RTI Appeals. • Food Stamp Program allows for numerous continuances.

12. Attending the Hearing • Arrange for witnesses to be present either telephonically or physically in advance. • If appearing by phone, make sure all individuals present have a copy of all evidentiary documents.

13. During the Hearing • The following is the order in which the hearing will be conducted: • Introduction by the Hearing Officer • Opening statements • Evidentiary presentation by both parties according to who has the burden of proof • Rebuttal evidence presented respectively • Closing Statements or Motion for Proposed Order • Final Closing Instructions from Hearing Officer • Hearing Officer is not bound to rigidly following the aforementioned steps.

14. During the Hearing Cont’d • Witnesses should be testifying to the actions they have take or those of which they have personal knowledge. • Witnesses can appear telephonically. • Documents relied on in the decision made by the Department should be put into evidence.

15. During the Hearing Cont’d • Hearsay evidence may be used for the purpose of supplementing or explaining other evidence, but it shall not be sufficient in itself to support a finding unless it would be admissible over objection in civil actions. • To the extent that the rules of discovery in the Florida Rules of Civil Procedure are not inconsistent with Chapter 120, the rules of discovery of the Florida Rules of Civil Procedure shall be applicable. The Hearings Officer may issue appropriate orders to effectuate the purposes of discovery and to prevent delay.

16. Failing to Appear • If the petitioner or authorized representative fails to appear without good cause, the appeal will be dismissed. • Good cause is defined as a substantial reason put forth in good faith that is not unreasonable, arbitrary, or irrational and that is sufficient to create an excuse for an act. • If the Department fails to appear, the appeal may be granted or sanctions may be placed against the Department if another hearing date must be set.

17. Post-Hearing Submittals • Either party may request that the Hearing Officer leave the record open for submissions of additional evidence, memoranda of law or proposed orders. • Each such request will be considered on its facts.

18. Final Order • The Hearing Officer will issue a Final Order stating the facts and legal authority relied on in its decision. • The deadline for most programs is 90 days from the date of the hearing request. • Food Stamp Program deadline is 60 days.

19. Judicial Review • If Petitioner loses the hearing, the Petitioner has the right to seek judicial review in the Florida District Courts of Appeal within 30 days of the issuance of the Final Order. • The Department cannot request an appeal; the Final Order is the final decision for the Department.

20. Implementation • The final order must be implemented no later than ten days from the date of the final order. • When a Petitioner files a notice of appeal or a petition for judicial review of the Final Order, pursuant to Fla. Stat. § 120.68, the filing of the petition does not by itself stay the enforcement of the agency decision.

21. Conclusion • Additional information about fair hearing procedures can be found in the DCF publication Guide to Fair Hearing Process, Fla. Admin. Code Rules 65-2.042 to 65.2.066 (for public assistance administrative hearings other than RTI), Fla. Admin. Code R. 65C-31.009 (RTI due process administrative rule), and Fla. Stat. §§120.569 and 120.57. 

22. For More Information: • University of Miami School of Law • Children & Youth Law Clinic • 1311 Miller Drive, Suite F305 • Coral Gables, FL 33146 • Tel. 305-284-3123 • Fax. 305-284-4383 • www.law.miami.edu/cylc