State Fair Hearing Rules: Some Observations about Differences

- Some rules discuss alternative locations and means for conducting hearings. For example as possible alternatives to face-to-face hearings, Alabama provides for documentary hearings; Colorado provides for conference phone calls; Connecticut provides for video conference calls with a hearing officer in a state office and other participants in regional offices and also mentions that hearings can take place in the appellant’s home in some circumstances; Tennessee mentions that hearings can be held through telephonic, televised, or other means if all parties concur. Advocates should consider the most advantageous location for their clients, weighing convenience against the client’s ability to more easily examine witnesses and make an impression through a face-to-face appearance.

- The formality of hearing procedures varies from state to state. For example, Tennessee rules discuss the right to discovery and set out the order of case presentations while Connecticut and Virginia explicitly say that the hearing is informal. If proceedings are formal, make sure that you and your client know the rules and/or have a representative that is familiar with hearing procedures.

- Some states specify that the rules of evidence that apply in courts do not apply to fair hearings. For example, Massachusetts instead requires evidence to be “reasonable.” In Michigan, the Administrative Law Judge may refuse to accept evidence that is unduly repetitious, immaterial, irrelevant, or incompetent, but must state on record why the evidence is being rejected.

- Many rules mention the right to an interpreter for people with limited English and the right to accommodations for people with disabilities. Even if this is not mentioned in your state rules, other federal laws (e.g., the Civil Rights Act, Section 504 of the Rehabilitation Act, and the Americans with Disabilities Act) provide for these rights.

- State rules vary in the power they give hearing officers to make findings that are against agency policies. For example, Colorado provides that “the Administrative Law Judge is bound by the Department’s interpretation of statutes where the Department has regulations implementing such statutes.” In contrast, in Delaware, hearings can be consolidated into a group hearing if the sole issue is one of state or federal law, regulation, or policy, and the hearing officer applies state laws to a case “except to the extent they are in conflict with federal regulations.” If your dispute is about policies and rules rather than about the facts of a case, check the hearing officer’s authority to determine if a hearing is the appropriate forum for your client.

- For medical disputes, rules generally provide for a medical assessment at the agency’s expense. While most states simply give the hearing officer the power to order a medical assessment, New Jersey specifies that the assessment be from a “source satisfactory to the claimant.” Even if the rules are less specific, you or your client may want to suggest a satisfactory source for a medical assessment to the hearing officer.

- Several states specify that hearing decisions must be accessible to the public, with some information (such as public assistance information) safeguarded. New Jersey and Delaware, for example, include this in their hearing laws. Even without a specific provision, hearing decisions may be accessible under general state administrative procedures acts. You may be able to review some Medicaid hearing decisions in your state to see how cases similar to your client’s have been decided in the past.

- Levels of review vary. Under federal rules, there must be a state level hearing and states can opt to also allow local fair hearings. In addition, for managed care enrollees or applicants, managed care organizations must provide for an internal grievance and states can either require that a beneficiary use the managed care organization’s internal appeals system before going to a state fair hearing, which serves as an external appeal, or can allow the beneficiary to go straight to the hearing, or approach both simultaneously. In some states, the hearing officers’ decision is the final agency decision but the claimant can ask for reconsideration; in other states, the hearing officer’s decision goes to the agency director or an appeals agency who issues the final agency decision. At that point, the case may be appealed through the courts. Check notices of hearing decisions and your state laws and regulations to understand the next possible steps in an appeal and the timelines.

Links to some state rules:

Illinois (Dept of Human Services)

Maine (see chapter 1.22)