PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following action:
Action taken:
Addition of section 358-5.13 to Title 18 NYCRR.
Statutory authority:
Social Services Law, sections 20(3)(d) and 22(8)
Subject:
Video Hearings.
Purpose:
The rule would specifically allow the Office of Administrative Hearings to conduct fair hearings by means of video equipment.
Text or summary was published
in the April 15, 2015 issue of the Register, I.D. No. TDA-15-15-00003-P.
Final rule as compared with last published rule:
No changes.
Text of rule and any required statements and analyses may be obtained from:
Jeanine Behuniak, New York State Office of Temporary and Disability Assistance, 40 North Pearl Street, 16C, Albany, New York 12243-0001, (518) 474-9779, email: Jeanine.Behuniak@otda.ny.gov
Initial Review of Rule
As a rule that requires a RFA, RAFA or JIS, this rule will be initially reviewed in the calendar year 2018, which is no later than the 3rd year after the year in which this rule is being adopted.
Assessment of Public Comment
The Office of Temporary and Disability Assistance (OTDA) received comments from seven entities or organizations on the proposed regulations to specifically allow the Office of Administrative Hearings (OAH) to conduct fair hearings by means of video equipment. All of the comments have been reviewed and duly considered in this Assessment of Public Comments.
Scheduling of video hearings
A comment recommended that OTDA needs "to actively and mindfully schedule" video hearings in social services districts (SSDs) that host large numbers of fair hearings. Also a comment asserted that rescheduled in-person hearings should be heard on the next available calendar, and the appellants should be given the opportunity to travel to other sites for the hearings.
OTDA plans to continue actively and mindfully scheduling video hearings in all SSDs. Also OTDA will be sensitive to scheduling in-person hearings as quickly as possible.
Notices
Comments asserted that OTDA's Notices of Fair Hearing must be revised to clearly inform appellants when hearings will be conducted using video equipment. Comments also recommended that OTDA should develop educational videos, brochures and literature to familiarize appellants with video hearings and their rights during the fair hearing process.
The Notices of Fair Hearing will be revised to inform appellants that their hearings may be conducted by video equipment and will include information regarding opting out of video hearings. Also OAH has developed a video hearings guide that will be provided with the Acknowledgements of Fair Hearing Request. The scheduling notices will also set forth the appellants’ rights during the video hearings process.
Initiation of the video hearing process
Comments asserted that the video hearings process should begin on a roll out basis or as a pilot program to enable OTDA to monitor and evaluate the impact of the new process. One comment stated that while the video hearing process is being initiated, all unfavorable hearing decisions should be subject to extra scrutiny, and in-person hearings should be ordered where miscommunication and related problems are detected. Additional comments requested that all stakeholders be included in the evaluation process, and that a neutral organization complete the evaluation.
OTDA plans to closely monitor and evaluate the video hearings process on an ongoing basis. OAH will be particularly watchful for any difficulties that may develop during video hearings and take all appropriate actions so that the appellants’ due process rights are protected. OAH will welcome comments and suggestions from all stakeholders regarding the video hearings process both during and after its implementation.
Opt-in process
Comments asserted that OTDA should provide an opt-in process for video hearings.
Although an opt-in process was considered, OAH due to administrative constraints has determined not to provide an opt-in option at this time.
Opt-out process
The comments made varying recommendations as to when appellants should be allowed to make opt-out requests pursuant to 18 NYCRR § 358-5.13(c). One comment stated that opt-out requests should only be allowed up to 24 hours prior to the scheduled video hearings. Another comment stated that opt-out requests should be allowed at any time during the video hearings. Various comments chose points-in-time between these two recommendations.
OTDA has determined that appellants should be allowed to object to hearings conducted using video equipment at the earliest possible opportunity before the time set for the hearings, but no later than at the commencement of the hearings. This is reflected in 18 NYCRR § 358-5.13(c). If appellants become concerned with the video hearings process after the commencement of their hearings, they should raise their objections, and OAH will determine whether in-person hearings should be held pursuant to 18 NYCRR § 358-5.13(d).
Comments asserted that all “opt-out” requests made pursuant to 18 NYCRR § 358-5.13(c) should be granted. They also maintained that the regulations should clarify who will make the opt-out determinations, and if opt-out requests are denied, there should be mandatory, immediate supervisory review. Lastly, comments stated that opt-out requests should be done via dedicated phone lines, fax numbers, e-mails or postal addresses.
OTDA maintains that the regulation at 18 NYCRR § 358-5.13(c) does provide an opt-out opportunity for appellants; however, the subdivision does not require OAH to grant all opt-out requests. OAH will establish administrative processes for supervisory review of opt-out determinations and will dedicate administrative resources so that opt-out requests are handled appropriately.
Safeguarding an appellant’s due process rights and protecting fundamental fairness
One comment stated that the regulations at 18 NYCRR § 358-5.13(d)(1) and (2) appear to provide standards by which OAH will require hearings be held in-person, even in the absence of requests or objections by appellants. The comment stated that the "provisions appear to emanate from the fundamental duty of [hearing officers] and fair hearing staff to promote fairness and justice.”
OTDA agrees. This is the purpose of 18 NYCRR § 358-5.13(d)(1) and (2).
Comments asserted that hearing officers must have the power to stop video hearings at any time and refer them for in-person hearings. Comments noted that hearing officers need to be very attuned to an appellants’ failure to understand.
Pursuant to 18 NYCRR § 358-5.13(d), hearing officers have the authority to stop video hearings at any time and refer them for in-person hearings. OTDA agrees that the hearing officers need to pay close attention to whether the appellants understand what is occurring during the fair hearing process, whether the hearings are held in-person or by video equipment.
Comments asserted that the proposed regulations at 18 NYCRR § 358-5.13(d) should provide clear standards and examples of situations when hearings should be conducted in-person. A comment also asserted that the provisions at 18 NYCRR § 358-5.13(c) and (d) should be rewritten to clarify how they relate to each other.
OTDA maintains that the provisions of 18 NYCRR § 358-5.13(d) provide clear guidance to OAH. OTDA has chosen not to set forth specific examples that must be met in order to adjourn from video hearings to in-person hearings. OTDA wants to provide OAH the greatest possible flexibility to take each Appellant’s unique needs and circumstances into consideration. OTDA does not agree with the comment that 18 NYCRR § 358-5.13(c) and (d) should be rewritten.
Video experience
Comments asserted that OAH should ensure hearing officers receive appropriate training prior to conducting video hearings.
OAH maintains that hearing officers will receive thorough and appropriate training before they hold hearings by means of video equipment.
Comments expressed concern for appellants with disabilities who participate in video hearings. The comments also warned about misunderstandings and cross conversations during video hearings and wanted OAH to ensure that video hearing participants would be able to see and hear each other, as well as the hearing officer.
At the beginning of hearings held by video equipment, the hearing officers will describe the process that will take place during the video hearings. The hearing officers will assess whether the fair hearing participants understand each other and confirm that they can see and hear each other and the hearing officers. The hearing officers will actively guard against cross conversations so that any communication misunderstandings are resolved. If there are unresolvable issues related to these matters, the hearing officers will utilize 18 NYCRR § 358-5.13(d) and adjourn for in-person hearings.
A comment asserted that video monitors should not be bolted to furniture in a manner which prevents adequate viewing.
OAH maintains that the monitors will be located in a manner that provides ample viewing during video hearings.
A comment asserted that due to the physical absence of the hearing officer, video hearings could result in increased safety risks. The comment stated that SSDs would either experience increased costs of enhancing security or increased risks because existing security would need to cover more areas.
OAH maintains that the SSDs should already have adequate security in place whether their fair hearings are conducted in-person or by video equipment. The hearing officers hold the administrative hearings; they do not provide security to fair hearing participants.
Submission of documents
Comments expressed concern regarding the submission of documents at video hearings. A comment asserted that if SSD representatives submit new evidence to the hearing officers at the hearings, the appellants should receive paper copies of the new evidence. The comment went on to discuss the unfairness of appellants being relegated to terminals to view new evidence.
OTDA asserts that the video hearings process has been designed to accommodate the submission of documents by both the appellants and the SSD representatives at the hearings. If the SSD representatives want to submit new documents at the hearings, photocopies must be offered to the appellants, and the new documents will be electronically transmitted to the hearing officers. If the appellants want to submit new documents at the hearings, photocopies could be made for the SSDs, and the new documents will be electronically transmitted to the hearing officers. The hearing officers will then be able to review the documents submitted by the appellants and/or the SSDs’ representatives and, when appropriate, accept the documents into evidence.
Comments asserted that the regulatory proposal should require that neutral persons be on site at video hearings to handle the submission of documents to the hearing officers.
OTDA maintains that this measure is not necessary. The hearing officers will be able to see the activities in the hearing room and assess whether documents are being handled properly. In the ordinary course of business, the electronic transmittal of documents will take place in the hearing rooms in the presence of the appellants, and the hearing officers will confirm on the record which documents are being accepted into evidence. Those documents, in turn, will become part of the record. As noted above, appellants will be offered photocopies of all documents being submitted by the SSD representatives.
Comments raised issues with Medicaid Managed Care hearings. The comments stated that Managed Care Organizations (MCOs) often submit documents, instead of appearing in-person at hearings, and to protect the appellants’ privacy, SSD representatives are not in the rooms during the hearings. The comments recommended that neutral persons trained by OTDA in confidentiality be in the rooms during video hearings to handle the appellants’ medical documents.
OAH presently is planning to conduct Medicaid Managed Care hearings by means of video equipment. Under the guidance of the hearing officers, the electronic equipment in the hearing room will be used to transmit the evidence to the hearing officers.
Confidentiality
A comment stated that the regulations should specifically address the security and the confidentiality of the following: (1) video hearings technology; (2) the scanned and transmitted documents; and (3) the handling and retention of the video and/or audio components of such hearings.
OAH and the SSDs already abide by strict security and confidentiality protections and will continue to do so.
Costs and operation of computer equipment
A comment acknowledged that video hearings offer significant opportunities to reduce the overall costs of the hearings process and to improve operational efficiency, but opposed any changes that do not provide commensurate financial and operational resources to the SSDs.
OTDA anticipates that the video hearings process will reduce the overall costs of the hearings process and improve operational efficiency. Furthermore, it is noted that if the SSDs' decisions are affirmed, the SSDs may see a reduction in costs associated with aid-to-continue when cases are heard more rapidly due to the efficiencies of the video hearing process.
A comment asserted that New York State should fully reimburse the SSDs for costs associated with the repair, the replacement, and/or the insurance coverage for the video equipment. The comment also asserted that SSDs need to be advised of the service level agreements that OTDA has with its warranty and maintenance vendors.
OTDA maintains that New York State purchased the required video equipment and should be responsible for repairs and needed replacements that are not due to neglectful actions on the part of the SSDs. Examples of neglect would include, but are not limited to: (1) poor security for the equipment and resulting thefts or damage; or (2) damage to the equipment from inappropriate usage or storage. OTDA agrees that if New York State has warranties or maintenance contracts available for use by the SSDs, New York State should share those with the SSDs. OTDA will establish procedures for the SSDs to report issues with the equipment to New York State Information Technology Services (ITS). ITS will be the party who contacts the maintenance vendor. OTDA will not be revising current agreements addressing insurance coverage for the video equipment.
A comment stated that the proposal’s assumption that the SSDs’ Local Area Network (LAN) administrators will be able to provide on-time support for video hearings is problematic. The comment maintained that OTDA or State Information Technology Services (ITS) needs to provide expedited support and inform the SSDs of details regarding the process.
OTDA maintains that in the event the system fails to operate and the video hearing must be adjourned, the SSDs’ LAN administrators will have time to coordinate with OAH and ITS to identify a solution.
Additional issues
A comment stated that aid-to-continue must be provided without disruption.
The current regulatory provisions and policies addressing the right to aid-to-continue will remain in place and govern the fair hearing process whether in-person or video hearings are at issue.
A comment asserted that if OAH is going to use video technology, appellants should have the benefit of requesting recorded videos of their fair hearings.
At the present time, OAH is not planning to make video recordings of the hearings. OAH is planning to continue making audio recordings of both the in-person hearings and the video hearings.
A comment asserted that the proposed regulations do not adequately reflect aspects of the consensus that had been reached by the former director of OAH, OTDA staff, and the advocates.
The published regulations reflect OAH’s plans for the video hearings process. OAH will welcome comments and suggestions regarding the video hearings process both during and after its implementation.
A comment asserted that OAH should contact SSDs to address their concerns regarding the video hearings process.
During the public comment period for this regulatory proposal, SSDs had an opportunity to advise OTDA of concerns they have regarding the video hearing process. Only one SSD expressed limited opposition, and even that SSD wrote, “[We are] a strong proponent of governmental efficiency and innovation. We commend [OTDA] for considering fair hearing video conferencing. We believe that video conferencing offers significant opportunity to reduce overall fair hearing costs and improve operational efficiency for all parties.”
Comments were received regarding the translation of notices, the use of jargon and terms of art during hearings, the earlier submission of hearing packets by managed care organizations, and the ability of SSDs to receive waivers of appearance. These comments are outside the scope of the Notice of Proposed Rule Making.
