Fair Hearing - Florida Guardian ad Litem

Fair Hearings Training
Presented by University of Miami
School of Law, Children & Youth Law
Clinic, Caitlin Currie, Shana Schoem
and Seida Wood
Purpose of this Training…
To provide GAL attorneys with a general
overview of the practices, procedures and
protocols of the DCF Administrative Fair
Hearing Process in Florida in cases involving
the denial, termination or reduction of
government benefits, including Road-toIndependence, Medicaid and Medicaid
Waiver, food stamps, and cash assistance.
Common Law Beginnings
“…to cut off a welfare recipient in the face of
. . `brutal need' without a prior hearing of
some sort is unconscionable, unless
overwhelming considerations justify it.“
-Goldberg v. Kelly, 397 U.S. 254, 261 (1970)
(Some) Federal Law
45 C.F.R. 205.10:
A State plan under title I, IV-A, X, XIV, or XVI (AABD) of the Social Security
Act shall provide for a system of hearings under which:
(1) The single State agency responsible for the program shall be
responsible for fulfillment of hearing provisions which shall provide for:
(i) A hearing before the State agency, or
(ii) An evidentiary hearing at the local level with a right of appeal to a State
agency hearing. Where a State agency adopts a system of evidentiary
hearings with an appeal to a State agency hearing, it may, in some political
subdivisions, permit local evidentiary hearings, and in others, provide for
a single hearing before the State agency. Under this requirement hearings
shall meet the due process standards set forth in the U.S. Supreme Court
decision in Goldberg v. Kelly, 397 U.S. 254 (1970) and the standards set
forth in this section.
Types of Hearings
Food Stamps
Temporary Assistance for Needy Families
*Medicaid Waiver-Agency for Persons with
Fair Hearing Office
All correspondence must be conducted with
the Department of Children and Families
Tallahassee Office of Appeal Hearings at the
following address:
Office of Appeal Hearings
Bldg. 5, Second Floor
1317 Winewood Blvd.
Tallahassee, FL 32399-0700
Tel: (850) 488-1429
Fax: (850) 437-0662
Email: [email protected]
Requesting a Fair Hearing
Request can be either verbally or in writing.
Fair hearing requests filed within ten days of
the Notice of Case Action may qualify for
reinstatement (continuation) of benefits when
there has been a reduction or termination of
The request for the fair hearing shall be
received no later than 30 calendar days from
the date the notice was mailed or handdelivered to the individual.
Pre-hearing Fact Finding/Settlement
An agency supervisor must review the action
under appeal.
The purpose of supervisory review is to
determine if the appeal is resolvable without
proceeding to hearing.
If the review results in resolution of the
appeal, the petitioner must withdraw the
Preparing for the Hearing
Determine the policy relied
upon by the Department in
making the decision at issue.
Be sure to acquire all
documentation relied on by the
Department in making the
documentation relied on by the
Department, it is important to
acquire any other documents
relevant to the denial.
Determine who has the burden
of proof at the hearing.
All evidence that will be relied
on during the hearing must be
shared with opposing counsel
within seven days of the date
of the hearing.
Any delay in sharing evidence
could result in the hearing
officer reconvening the hearing
at a later time.
Notice of Hearing
Notice of Hearing will be issued fourteen
days before the hearing including time, place
and location of hearing.
Hearings can be held telephonically or at a
physical location near where the Petitioner
resides. The type of hearing will be indicated
on the Notice.
Motions for Continuance
In most Fair Hearing Appeals, either party
can request a continuance for good cause.
Any other continuance will be granted only in
emergency circumstances.
However, there is a new SEVEN DAY Rule
for RTI Appeals.
Food Stamp Program allows for numerous
Attending the Hearing
Arrange for witnesses to be present either
telephonically or physically in advance.
If appearing by phone, make sure all
individuals present have a copy of all
evidentiary documents.
During the Hearing
The following is the order in which the hearing will
be conducted:
Introduction by the Hearing Officer
Opening statements
Evidentiary presentation by both parties according to who
has the burden of proof
Rebuttal evidence presented respectively
Closing Statements or Motion for Proposed Order
Final Closing Instructions from Hearing Officer
Hearing Officer is not bound to rigidly following the
aforementioned steps.
During the Hearing Cont’d
Witnesses should be testifying to the actions
they have take or those of which they have
personal knowledge.
Witnesses can appear telephonically.
Documents relied on in the
decision made by the
Department should
be put into evidence.
During the Hearing Cont’d
Hearsay evidence may be used for the purpose of
supplementing or explaining other evidence, but it shall
not be sufficient in itself to support a finding unless it
would be admissible over objection in civil actions.
To the extent that the rules of discovery in the Florida
Rules of Civil Procedure are not inconsistent with
Chapter 120, the rules of discovery of the Florida Rules
of Civil Procedure shall be applicable. The Hearings
Officer may issue appropriate orders to effectuate the
purposes of discovery and to prevent delay.
Failing to Appear
If the petitioner or authorized representative fails to
appear without good cause, the appeal will be
Good cause is defined as a substantial reason put
forth in good faith that is not unreasonable, arbitrary,
or irrational and that is sufficient to create an excuse
for an act.
If the Department fails to appear, the appeal may be
granted or sanctions may be placed against the
Department if another hearing date must be set.
Post-Hearing Submittals
Either party may request that the Hearing
Officer leave the record open for submissions
of additional evidence, memoranda of law or
proposed orders.
Each such request will be considered on its
Final Order
The Hearing Officer will issue a Final Order
stating the facts and legal authority relied on
in its decision.
The deadline for most programs is 90 days
from the date of the hearing request.
Food Stamp Program
deadline is 60 days.
Judicial Review
If Petitioner loses the hearing, the Petitioner
has the right to seek judicial review in the
Florida District Courts of Appeal within 30
days of the issuance of the Final Order.
The Department cannot request an appeal;
the Final Order is the final decision for the
The final order must be implemented no later
than ten days from the date of the final order.
When a Petitioner files a notice of appeal or a
petition for judicial review of the Final Order,
pursuant to Fla. Stat. § 120.68, the filing of
the petition does not by itself stay the
enforcement of the agency decision.
Additional information about fair hearing
procedures can be found in the DCF
publication Guide to Fair Hearing Process,
Fla. Admin. Code Rules 65-2.042 to 65.2.066
(for public assistance administrative hearings
other than RTI), Fla. Admin. Code R. 65C31.009 (RTI due process administrative rule),
and Fla. Stat. §§120.569 and 120.57.
For More Information:
University of Miami School of Law
Children & Youth Law Clinic
1311 Miller Drive, Suite F305
Coral Gables, FL 33146
Tel. 305-284-3123
Fax. 305-284-4383
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