PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following proposed rule:
Proposed Action:
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 of proposed rule:
A new section 358-5.13 is added to Title 18 NYCRR to read as follow:
§ 358-5.13 Video Hearings
(a) OAH may provide that a fair hearing held pursuant to this Part be conducted by means of video equipment. When a hearing is conducted using video equipment, the parties and the hearing officer need not be physically present at the same location.
(b) All provisions of this Part, which are not inconsistent with the specific provisions of this section, shall apply to hearings conducted using video equipment.
(c) An appellant who objects to OAH conducting the fair hearing by video equipment should notify OAH at the earliest possible opportunity before the time set for the hearing, but no later than at the commencement of the hearing. The request must be made in writing, in person, by video equipment, or by telephone.
(d) A fair hearing, with the appellant and the hearing officer physically present at the same location, will be held in the following circumstances:
(1) when, in the judgment of OAH, an appellant’s due process rights would best be served by conducting a hearing in-person; or
(2) when, in the judgment of OAH, there are circumstances presented by the appellant which make proceeding with the hearing by video equipment fundamentally unfair.
Text of proposed rule and any required statements and analyses may be obtained from:
Jeanine S. Behuniak, NYS 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
Data, views or arguments may be submitted to:
Same as above.
Public comment will be received until:
45 days after publication of this notice.
Regulatory Impact Statement
1. Statutory authority:
Social Services Law (SSL) § 20(3)(d) authorizes the Office of Temporary and Disability Assistance (OTDA) to promulgate regulations to carry out its powers and duties.
SSL § 22(8) requires OTDA to promulgate regulations, not inconsistent with federal and State law, as may be necessary to administer its fair hearings process.
2. Legislative objectives:
It was the intent of the Legislature in enacting SSL §§ 20(3)(d) and 22(8) that OTDA establish rules to help ensure that the due process rights of appellants are adequately protected during the fair hearings process. These statutes give OTDA the authority to promulgate regulations concerning the administration of the fair hearings process.
3. Needs and benefits:
OTDA’s Office of Administrative Hearings (OAH) receives approximately 300,000 requests for fair hearings every year. OAH anticipates that the use of video hearings, in addition to the existing in-person hearings, would promote efficiency. With video hearings, OAH could assign individual hearing officers to hold fair hearings at multiple locations throughout the State on the same day. OAH would be able to schedule more hearings, and ultimately, the appellants’ fair hearings requests would be addressed and resolved more quickly.
The video fair hearing experience would be the same as the current in-person hearings, except the hearing officer and the parties would not be physically present at the same location. The hearings would be conducted in the social services districts’ (SSDs’) current hearing rooms. The appellant and the SSD representative would be able to see and hear the hearing officer, and the hearing officer would be able to see and hear the testimony of the parties.
The hearing officer would be able to look at the documents that the appellants and the SSDs’ representatives wish to submit into evidence. Each video hearing room would have scanning equipment that is connected to the hearing officer’s computer. When a document is scanned, it would appear on the hearing officer’s screen where he or she would review it just as if the hearing officer were present in the hearing room.
An appellant who objects to OAH conducting the fair hearing by video equipment should notify OAH at the earliest possible opportunity before the time set for the hearing, but no later than at the commencement of the hearing. An appellant objecting to a video hearing must make his or her request for an in-person hearing in writing, in person, by video equipment, or by telephone.
When in the judgment of OAH, an appellant’s due process rights would best be served by conducting a hearing in-person, arrangements will be made for the in-person hearing. In addition, when, in the judgment of OAH, an appellant presents circumstances which make proceeding with a video hearing fundamentally unfair, OAH will conduct an in-person hearing, rather than a video hearing.
4. Costs:
The costs for the implementation of this proposed regulation are anticipated to be minimal. New York State has provided the necessary hardware for nearly all SSDs to participate in video hearings. Also New York State has provided the bandwidth for nearly all SSDs to participate in video hearings. It is noted that the installation of a networking drop is still needed in the hearing room of one SSD. Any OTDA costs associated with the training of SSD staff and the development of new notices and forms would be absorbed within OTDA’s current budget.
The SSDs would use existing arrangements to help comply with the proposed regulations. It is anticipated that the SSDs would have their current fair hearing representatives participate in the video hearings, and they would use their current hearing rooms for the new video hearings.
The SSDs would incur costs for continuing compliance with the proposed regulations. The SSDs would be responsible for any loss or damage to the video and scanning equipment, and they would need to maintain sufficient insurance coverage to reflect this responsibility. It is anticipated that the SSDs would occasionally need to replace fuses contained in the video equipment at an estimated cost of less than five dollars for five fuses, and the SSDs may incur an increase in electricity costs to power the video and scanning equipment. The impact of the costs for fuses and electricity would be greater in SSDs that participate in fair hearings by video more frequently. Additionally, there is a potential offset to these costs, as the SSDs will no longer have to incur the cost of providing a paper copy of the evidence packet to OAH.
5. Local government mandates:
The proposed rule would not impose any programs upon the SSDs. However, the SSDs would need to identify contact persons who would serve as liaisons with OTDA regarding the video hearing equipment. During the video hearings, the fair hearing representatives for the SSDs would need to operate the scanning equipment in accordance with all security, privacy, confidentiality and compliance requirements, and if there were technical issues during the fair hearings, the counties’ Local Area Network (LAN) administrators would provide assistance with connectivity issues. To assist the SSDs, OTDA would provide training regarding the use of the video hearings equipment, if needed.
6. Paperwork:
OTDA would need to develop a limited number of new notices and forms to implement the video hearings and advise the appellants of their due process rights. However, the SSDs would not need to undertake additional reporting or recordkeeping to support this process. Instead of providing the hearing officer a paper copy of the evidence packet for each hearing, the SSDs would scan and transmit the evidence packet electronically to the hearing officer.
7. Duplication:
These proposed amendments would not duplicate, overlap or conflict with any existing State or federal statutes or regulations governing OTDA’s fair hearings process.
8. Alternatives:
The alternative is to leave 18 NYCRR Part 358 intact. However, the proposed regulations would specifically allow OTDA to utilize new technology to streamline the fair hearings process and, at the same time, protect the appellants’ due process rights.
9. Federal standards:
The proposed amendments would not conflict with federal standards governing OTDA’s fair hearings process.
10. Compliance schedule:
After the remaining network drop is completed, all SSDs would be in compliance with this rule on its effective date.
Regulatory Flexibility Analysis
1. Effect of rule:
The proposed regulatory amendments would not impact small businesses, but they would have an impact on the 58 social services districts (SSDs) in New York State. The video fair hearing experience would be the same as the current in-person hearings, except the hearing officer and the parties would not be physically present at the same location. The hearings would be conducted in the SSDs’ current hearing rooms. The appellant and the SSD representative would be able to see and hear the hearing officer, and the hearing officer would be able to see and hear the testimony of the parties.
2. Compliance requirements:
The SSDs would not need to undertake additional reporting or recordkeeping to support this process. The proposed rule would not impose any programs upon the SSDs. However, the SSDs would need to identify contact persons who would serve as liaisons with the Office of Temporary and Disability Assistance (OTDA) regarding the video hearing equipment. During the video hearings, the fair hearing representatives for the SSDs would need to operate the scanning equipment in accordance with all security, privacy, confidentiality and compliance requirements, and if there were technical issues during the fair hearings, the counties’ Local Area Network (LAN) administrators would provide assistance with connectivity issues. To assist the SSDs, OTDA would provide training regarding the use of the video hearings equipment, if needed.
3. Professional services:
The proposed amendments would not require SSDs to hire additional professional services.
4. Compliance costs:
The majority of the SSDs would not incur initial capital costs to comply with the proposed regulations. New York State has provided the necessary hardware for nearly all SSDs to participate in video hearings. Also, New York State has provided the bandwidth for nearly all SSDs to participate in video hearings. It is noted that the installation of a networking drop is still needed in the hearing room of one SSD. Consequently, this SSD may incur initial capital costs to comply with the proposed rule.
The SSDs would use existing arrangements to help comply with the proposed regulations. It is anticipated that the SSDs would have their current fair hearing representatives participate in the video hearings, and they would use their current hearing rooms for the new video hearings.
The SSDs would incur annual costs to comply with the proposed regulations. The SSDs would be responsible for any loss or damage to the video and scanning equipment, and they would need to maintain sufficient insurance coverage to reflect this responsibility. It is anticipated that the SSDs would occasionally need to replace fuses contained in the video equipment at an estimated cost of less than five dollars for five fuses, and the SSDs may incur an increase in electricity costs to power the video and scanning equipment. The impact of the costs for fuses and electricity would be greater in SSDs that participate in fair hearings by video more frequently.
5. Economic and technological feasibility:
The SSDs would have the economic and technological ability to comply with these proposed regulations. New York State has offered to assist the one remaining SSD to install its network drop.
6. Minimizing adverse impact:
OTDA has attempted to minimize any adverse impact upon the SSDs. New York State has provided the necessary hardware for nearly all SSDs to participate in video hearings. Also New York State has provided the bandwidth for nearly all SSDs to participate in video hearings and has offered to assist the one remaining SSD to install its network drop. OTDA would provide training to the SSDs regarding the use of the video hearings equipment, if needed.
7. Small business and local government participation:
SSDs are in favor of video hearings. Video hearings, in addition to the existing in-person hearings, would promote efficiency. With video hearings, the Office of Administrative Hearings (OAH) could assign individual hearing officers to hold fair hearings at multiple locations throughout the State on the same day. As a result, OAH would be able to schedule more hearings. Thus SSDs, which are sometimes quite distant from OAH’s regional offices, would have their hearings scheduled sooner, and ultimately, the appellants’ fair hearings requests would be addressed and resolved more quickly.
Rural Area Flexibility Analysis
1. Types and estimated numbers of rural areas:
The proposed regulatory amendments would not impact small businesses in rural areas, but they would have an impact on the 44 rural social services districts (rural SSDs) in New York State. The video fair hearing experience would be the same as the current in-person hearings, except the hearing officer and the parties would not be physically present at the same location. The hearings would be conducted in the rural SSDs’ current hearing rooms. The appellant and the rural SSD representative would be able to see and hear the hearing officer, and the hearing officer would be able to see and hear the testimony of the parties.
2. Reporting, recordkeeping and other compliance requirements; and professional services:
No additional reporting or recordkeeping would be required by the rural SSDs. The proposed rule would not impose any programs upon the rural SSDs. However, the rural SSDs would need to identify contact persons who would serve as liaisons with the Office of Temporary and Disability Assistance (OTDA) regarding the video hearing equipment. During the video hearings, the fair hearing representatives for the rural SSDs would need to operate the scanning equipment in accordance with all security, privacy, confidentiality and compliance requirements, and if there were technical issues during the fair hearings, the counties’ Local Area Network (LAN) administrators would provide assistance with connectivity issues. To assist the rural SSDs, OTDA would provide training regarding the use of the video hearings equipment, if needed.
3. Costs:
The majority of the rural SSDs would not incur initial capital costs to comply with the proposed regulations. New York State has provided the necessary hardware for nearly all rural SSDs to participate in video hearings. Also, New York State has provided the bandwidth for nearly all rural SSDs to participate in video hearings. It is noted that the installation of a networking drop is still needed in the hearing room of one rural SSD. Consequently, this SSD may incur initial capital costs to comply with the proposed rule.
The rural SSDs would use existing arrangements to help comply with the proposed regulations. It is anticipated that the rural SSDs would have their current fair hearing representatives participate in the video hearings, and they would use their current hearing rooms for the new video hearings.
The rural SSDs would incur annual costs to comply with the proposed regulations. The rural SSDs would be responsible for any loss or damage to the video and scanning equipment, and they would need to maintain sufficient insurance coverage to reflect this responsibility. It is anticipated that the rural SSDs would occasionally need to replace fuses contained in the video equipment at an estimated cost of less than five dollars for five fuses, and the rural SSDs may incur an increase in electricity costs to power the video and scanning equipment. The impact of the costs for fuses and electricity would be greater in rural SSDs that participate in fair hearings by video more frequently.
4. Minimizing adverse impact:
OTDA has attempted to minimize any adverse impact upon the rural SSDs. New York State has provided the necessary hardware for nearly all rural SSDs to participate in video hearings. Also, New York State has provided the bandwidth for nearly all rural SSDs to participate video hearings and has offered to assist the one remaining SSD to install its network drop. OTDA would provide training to the rural SSDs regarding the use of the video hearings equipment, if needed.
5. Rural area participation:
Rural SSDs are in favor of video hearings. Video hearings, in addition to the existing in-person hearings, would promote efficiency. With video hearings, the Office of Administrative Hearings (OAH) could assign individual hearing officers to hold fair hearings at multiple locations throughout the State on the same day. As a result, OAH would be able to schedule more hearings. Thus rural SSDs, which are sometimes quite distant from OAH’s regional offices, would have their hearings scheduled sooner, and ultimately, the appellants’ fair hearings requests would be addressed and resolved more quickly.
Job Impact Statement
A Job Impact Statement is not required for the proposed amendments. It is apparent from the nature and the purpose of the proposed amendments that they would not have a substantial adverse impact on jobs and employment opportunities in the public or private sectors. The proposed amendments would not substantively affect the jobs of the employees of the social services districts or the Office of Temporary and Disability Assistance. Also the amendments would not have any adverse impact on jobs and employment opportunities in New York State.
