Fair Hearings Procedure 448-01-30-35

(Revised 3/1/12 ML #3304)

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An administrative hearing is similar to a trial in court in that it involves a process of determining facts through testimony of witnesses, documentary evidence, and application of the law. An Administrative Law Judge (ALJ) from the Office of Administrative Hearings (OAH) conducts hearings for the Department concerning appeals. There is no other evidentiary hearing or trial at any other level, not even in the courts. The facts must be established at the administrative hearing. If a case goes to the courts on appeal, the courts will review what was established at the hearing, but will not conduct a new hearing.

 

It is the responsibility of the ALJ to ensure the hearing meets due process requirements. Due process of law does not have a fixed meaning but requires, at a minimum, meaningful notice and an opportunity to be heard, including the right to confront and cross-examine witnesses and to present witnesses and evidence on one's own behalf.

 

1. The hearing shall be conducted at a reasonable time, date, and place to be set by OAH. If the applicant or recipient is unable to attend the hearing because of their health, transportation problems, or other reasons, they must promptly notify the county. The fair hearing may be held at:

• The county seat or regional office in which the applicant or recipient is living at the time of the hearing.

 

• A public building convenient to the parties.

 

• At any other location which is agreeable to the parties.

The hearings may be conducted by telephone unless the person requesting the hearing demands to appear personally before the ALJ. In all telephone hearings, the person requesting the hearing must be present at the county social service office. This provision may be waived when illness, disability, travel difficulty, or other reason, makes attendance of the person requesting the hearing at the county location impractical.

 

When a request for fair hearing is received from an applicant or recipient who is not residing in North Dakota, the hearing will be conducted by telephone unless they return for the hearing or authorize a representative in North Dakota to attend the hearing.

 

If an applicant or recipient dies after a request for a fair hearing has been filed but before the decision, the fair hearing may be held on behalf of their estate or one of their heirs if a legal representative has not been appointed.

2. The applicant, recipient or authorized representative is the opposing party. They may or may not be represented by an attorney. But in any event, they are responsible to present their own case. The Office of Administrative Hearings sends a Hearing Informational Guide to unrepresented appellants to assist them in preparing for the hearing.

 

3. The eligibility worker assigned to the case or another individual designated by the county must represent the county and the Department. The eligibility worker will then decide what evidence to present, which witnesses to call and what exhibits are needed to prove the case.

 

4. An assistant attorney general may represent the eligibility worker and Department in appeals where the applicant is represented by counsel. The attorney will decide what evidence to present, whether through introduction of documents or witness testimony. Substantive questions or communications should be directed to the attorney assigned to the case, not the ALJ.

 

5. Attendance at the hearing must be limited to those directly concerned:

• The applicant, recipient, authorized representative, including legal representatives, if any,

 

• An interpreter, if necessary, to be provided by the Department,

 

• Witnesses,

 

• Representatives of the county social service office and the Department, including legal representatives, and

 

• The ALJ.

The ALJ will exclude unauthorized persons from the hearing unless both parties agree to their presence. The ALJ may exclude persons whose actions cause substantial disruption of the hearing.

 

Appearance by the applicant, recipient, authorized representative or their legal representative as well as a representative of the county social service office and the Department is required at a fair hearing.

6. Witnesses may give testimony by telephone unless the ALJ determines that it will be unreasonably difficult to judge the witness’s credibility without the witness’s presence.

 

7. The party calling a witness by telephone must provide reliable identification of the witness and provide a satisfactory telephone connection. A party calling a witness by telephone must provide notice of that intention to the ALJ and to the other parties at least three days before the date of the hearing unless the ALJ determines arrangements may be made on shorter notice.

 

8. The hearing shall be conducted in an impartial manner. Witness testimony is taken under oath, subject to penalties for perjury. Perjury means making false statements under oath. The ALJ will advise witnesses of the penalties for perjury prior to their testimony.

 

9. The ALJ must be referred to as Judge or Your Honor, and other parties and witnesses must be referred to as Mr., Ms., or Mrs. While the hearing is conducted in a semi-informal manner, it is a formal proceeding. It is important that everyone be treated with respect, and that familiarity is removed from the proceeding to maintain the appearance of neutrality.

 

10. The proceedings at the hearing will be recorded by mechanical, electronic, or other means capable of reproduction or transcription.

 

When a hearing is conducted by telephone:

 

1. Speak slowly and pause appropriately. Wait until a question is completed before answering. (Remember, telephone is still send or receive.) Do not interrupt when someone else is speaking. If the ALJ interrupts, stop talking. The ALJ may be making a ruling or redirecting a witness who is giving irrelevant testimony.

 

2. The physical location of the telephone is important. Make sure the witness is close to the speaker so that the ALJ and other parties can clearly hear the witness.

 

3. Remember that communication is only verbal. The ALJ cannot see the witness or other persons present by telephone. It is important to speak clearly and make all responses verbal, not um hmm, uh-uh, yeah, etc.

 

When a hearing is conducted in-person:

 

1. The ALJ will set up the hearing room and direct placement of hearing participants.

 

2. The ALJ should be left alone in the hearing room until the appellant arrives so that neither side has time alone with the ALJ. This will minimize any chance for inappropriate remarks and preserves the appearance of fairness and neutrality.