Administrative Hearings - Preparing for an Appeal Hearing

PREPARING FOR AN APPEAL HEARING

In general, an appeal is your right by federal and state law if you disagree with a Department of Health and Human Services' decision to grant, deny, or otherwise modify a benefit, license, an amount owed, or some other decision affecting you. However, there are some programs that are administered by the Department that do not provide you with the right to an administrative appeal to the Office of Administrative Hearings. The individual Department program must be contacted for details.

When adjudicatory hearings are required to resolve disputes, it is the Office of Administrative Hearings objective that the adjudicatory hearing process provide a meaningful opportunity to parties to present their grievances. It is the intention of the Office of Administrative Hearings, in its conduct of adjudicatory hearings, to ensure that fundamental fairness is accorded to all parties in a manner consistent with carrying out the requirements of the law.

THE STRUCTURE OF A HEARING

An appeal hearing is conducted by an impartial Administrative Hearing Officer. The purpose of the hearing is to decide whether the Department was correct in taking or not taking a certain action. Anyone with an interest in the outcome of the hearing is a "party" to the hearing. Parties to hearings are typically the Department and you. It is the Hearing Officer's job to see to it that all parties receive a fair hearing. A fair hearing means an impartial Hearing Officer will decide your case after considering the testimony of all witnesses and other evidence. He or she will make sure you understand the proceedings and have the time you need to present information relevant to your case. The hearing will result in a written decision by the Hearing Officer upholding or reversing the initial decision of the Department.

Top

FILING FOR AN APPEAL

Time Limits – You generally have 30 days to appeal.
You generally must file your appeal of a Department decision within 30 days after the initial decision was mailed to you. The letter sent to you by the Department that provides you with the initial decision will tell you how much time you have to file your appeal, and where to send it. Be very aware that some DHHS programs have shorter (and a few have longer) time frames for filing your appeal. The contact person for the program you are involved with (or trying to become involved with) should be able to tell you what the exact time frame is. The Office of Administrative Hearings cannot provide this information to you. Be sure it is clear that you are filing for an appeal and that your letter is postmarked within the filing time period. You may be allowed an extension to file if you can show "good cause" for filing the appeal late. "Good cause" generally exists when you were prevented from making the deadline by circumstances beyond your control and which you could not have reasonably anticipated. "Good cause" is difficult to prove, so it is very important that your appeal is filed within the time required.

Top

SCHEDULING A HEARING - YOU MUST ATTEND

You will receive a scheduling letter from the Office of Administrative Hearings (unless your hearing is a child support related hearing, then you will receive a notice directly from the Division of Support Enforcement and Recovery) stating when and where the hearing will take place. Your hearing may be held by telephone (however, it is recommended that you attend). Witnesses may testify by telephone. However, prior notification and arrangements must be made in order for anyone to testify by telephone. Carefully note the DATE, TIME, and LOCATION of the hearing. You must make every effort to attend the hearing. If you have a very serious conflict and cannot make it, let us know immediately. Only if you have a commitment which is both very important and absolutely cannot be changed should you request a postponement. Generally, hearings will not be postponed for personal reasons, vacations, or business appointments.

Top

GATHER YOUR EVIDENCE

This appeal hearing may be your last opportunity to present your case, so be prepared to do it thoroughly. Department of Health and Human Services appeal hearings are generally said to be "de novo," Latin for afresh or anew. This is done to keep your hearing impartial and independent of the initial decision to grant or deny benefits, or a license. Therefore, the Hearing Officer who conducts the hearing is not bound by the initial decision and will base their decision only on the evidence and testimony presented at the appeal hearing. If papers, letters, statements, or other evidence were presented previously to the Department, and could be helpful to your case, you must take responsibility for presenting this information again at your appeal hearing. If there are direct witnesses to the circumstances surrounding your case, make sure they will attend your hearing to present their information. Before the hearing, you, your attorney, or authorized representative have the right to copy the case file. Top

OBTAINING TESTIMONY & DOCUMENTS; POWER TO SUBPOENA
Witnesses who are not parties to the hearing may be necessary for you to present the facts that are favorable to your case. If you ask someone to appear as a witness and they refuse, you may request that they be subpoenaed. This means they will be required by law to appear. You also have the same right to request a subpoena for written documents or other evidence that you cannot obtain on your own. If you need a subpoena, write or fax your request immediately to the Office of Administrative Hearings. You will be sent a form to fill out. Important: Witnesses who are subpoenaed to testify at an administrative hearing cannot be penalized for their testimony. Top

THE HEARING

BE PROMPT It is important that you arrive promptly. You are advised to arrive at least 15 minutes before the scheduled time of your hearing. If you do not appear your appeal will be dismissed or the hearing could be held without you. Your failure to appear may result in a denial of all rights of further appeal. Top

THE PROCEDURE OF THE HEARING
The hearing is a fact-finding process. It is like a trial, but not as formal. The appeal hearing is carefully controlled by the Hearing Officer. This is done to make sure each person has the same opportunity to present his/her case. The hearing will begin with the Hearing Officer making an opening statement about what will happen during the hearing. He/she will answer any questions you might have about the hearing process. The Hearing Officer will only use information presented at the hearing in reaching his/her decision. All testimony is given under oath and is tape-recorded. The Hearing Officer will begin receiving testimony by swearing in the first Department witness. The burden of proof varies depending on the issue. The party carrying the burden of proof usually presents their case first. The burden of proof generally lies with the Department to provide proof by a "preponderance of the evidence" that the decision they made was correct. The Hearing Officer will allow the Department and its witnesses to tell their story. You will be allowed to cross-examine each of the Department's witnesses. The Hearing Officer may ask questions also. When the Department has finished presenting its case, you will then be given the opportunity to present your case. The same process of questioning and cross-examination will take place (with the Department being allowed to cross-examine you and/or your witnesses). The Hearing Officer will close the hearing when neither side has any additional information or evidence to present. If you need clarification or have questions at any time during the hearing, ask the Hearing Officer for assistance. Finally, it is important to remember that the hearing is held to gather facts, not to get into an argument. Arguing, or getting angry during a hearing, prevents you from clearly stating the facts of your case. You will give a much better presentation if you stay calm and do not allow emotions to cloud the issues.

Top

EVIDENCE CONSIDERED

Only evidence presented at the hearing will be considered; therefore, you should bring any documents or witnesses that can directly help your case. Carefully think through your case. Ask yourself what information, documents, or witnesses will help to establish the facts in your favor. Choose witnesses who have first-hand information: a person who directly saw or heard the event to which they are testifying. Someone who testifies about what someone else said, saw or heard is giving hearsay; therefore, he/she can only have limited knowledge of that event. A witness with first-hand information is generally considered more reliable than hearsay evidence since he or she can be cross-examined. Some hearsay is admissible as evidence. However, it is generally not as reliable as testimony from someone who has first-hand information. Testimony given at the hearing, under oath and subject to cross-examination, is often given more weight than hearsay statements.

· Prepare yourself for the appeal hearing.
· Think about your case and ask yourself what information, documents, or
   witnesses will help establish the facts in your favor.
· Choose witnesses who have direct, personal knowledge of events about your case.
· Stick to the facts. Emotions usually cloud the issue and prevent you from presenting
   your case effectively.
· Organize your facts on paper. Make a list of the important points you would like to
   present at the hearing.
· Make another list of the points you think the opposing party may make. Consider
   what you will say or ask in response.

Top

ATTORNEY REPRESENTATION

You have the right to bring an attorney or other person to represent you at your hearing. The Hearing Officer will make sure all parties are given an opportunity to present their case. It is the Hearing Officer's job to make sure each party receives a fair and unbiased hearing, whether or not he/she chooses to have representation. If you believe your case is complicated, or you think you may be uncomfortable presenting your case, you can hire a lawyer or representative of your choice to present your case. Your attorney or representative will be given an opportunity to question the witnesses. If you choose to have legal representation, contact your attorney immediately to allow them ample time to prepare for the hearing. It is your responsibility to notify them of the time and place of the hearing and to pay any fees charged for such representation.

Top

ACCOMMODATIONS

If you need special services, such as accommodations for people with disabilities or an interpreter to present your facts at the hearing, contact the Department in advance so they can make the necessary arrangements.

Top

TELEPHONE HEARINGS

Telephone hearings (via "conference call") allow you to participate in a hearing without the expense, time or possible hazard of traveling to a central hearing site. Telephone hearings are scheduled by the Office of Administrative Hearings based on many considerations, including, the number of witnesses and documents, the length of the hearing, the distance to a central hearing site, and the safety of the participants. In a telephone hearing, your testimony and that of your witness is taken, under oath, by phone. The Hearing Officer conducts the hearing in the same manner as an in-person hearing, using the same question and answer format. You will have the same opportunity to present your case and question the other people involved. In certain hearings, the Department's representative may conduct their portion of the hearing by telephone. The Hearing Officer will call you and/or the Department representative at the number given by you and/or the Department representative. If this number is not correct, or if no number is listed, you may lose your right to a hearing. The Hearing Officer will call you at the time stated on the scheduling letter. Be near your telephone 15 minutes before your scheduled hearing time in order to avoid delay. Important: If your hearing will be by telephone, any documents or other similar types of evidence you would like to present must be mailed to the Office of Administrative Hearings in time to distribute it to the opposing party before the hearing.

Top

AFTER THE HEARING

You will receive a written decision, by mail, from the Hearing Officer approximately 30 days after the hearing is closed. The decision may take one of two forms. For most child support enforcement type hearings, the Hearing Officer's written decision is the final agency action. For most all other hearings, the Hearing Officer's written decision will be a "Recommended Decision." In this type of case, the Commissioner of the Department of Health and Human Services will have the final say, and will issue a written "Final Decision." If you do not agree with the final decision of the Hearing Officer, you can appeal the decision within 30 days, to the Superior Court. If you do not agree with the "Recommended Decision" of the Hearing Officer, you have 20 days to write to the Commissioner to explain your exceptions to the Recommended Decision. If you do not agree with the Final Decision of the Commissioner, you can appeal the decision within 30 days, to the Superior Court.

FOR MORE INFORMATION
WRITE OR CALL

Maine Department of Health and Human Services
Office of Administrative Hearings
221 State Street
11 State House Station
Augusta, ME 04333-0011

TEL: (207)287-3610
FAX: (207)287-8448
TTY: (207)287-4479 (Hearing Impaired)

Top

AGENCY INFORMATION

Rules and Regulations

HEARINGS