359.7 Administrative disqualification hearings.
(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.