Legislators say DSS hearing rules must change for ‘fundamental fairness’
They’re called fair hearings — the chance people get to appeal decisions made by the state Department of Social Services, such as denials of applications for benefits or being turned down for Medicaid coverage of certain treatments.
But some legislators say the way the department handles the hearings makes them anything but fair.
That’s because if hearing officers have legal questions about the cases, they sometimes consult with the social services department’s attorneys or staff — people employed by the agency whose decision is under appeal.
Critics say the practice is akin to having the judge in a lawsuit seek guidance from someone paid by the defendant, without having to tell the other side or give all parties a chance to weigh in.
“It’s a question of fundamental fairness,” said state Sen. Gayle Slossberg, D-Milford, co-chairwoman of the legislature’s Human Services Committee. “The hearing officer should make a decision based on the facts and evidence in front of them, not on some secret conversation they had with someone else. That’s just not fair and it’s time we addressed this.”
Legislators did last month, in a measure that passed unanimously. But supporters are concerned that Gov. Dannel P. Malloy might veto the bill.
When asked about the bill Wednesday, Malloy was non-committal, saying he is aware of the differences in opinions, but he has yet to have a detailed conversation with his general counsel chief of staff.
“I am aware of pros. I’m aware of cons,” he said.
The bill would prohibit DSS hearing officers involved in contested cases from communicating with other department employees in connection with any facts or law in the case, unless they give the other parties advance notice and allow them to participate on the record.
DSS Commissioner Roderick L. Bremby opposed the change, telling legislators that prohibiting hearing officers from consulting with other agency employees without notifying the other parties would “severely hamper the accuracy and efficiency” of hearing officers’ work.
Requiring hearing officers to give notice and allow the other side to address the issue would be “unnecessarily burdensome and time consuming and increase the likelihood of erroneous decisions being issued,” Bremby said in testimony. The hearing officers work for DSS and are not attorneys.
DSS legal director Brenda Parrella, who oversees the unit that handles hearings, testified that the department takes steps to avoid the appearance of bias in the hearings, including keeping hearing officers from taking cases involving workers posted in the same office.
But she told lawmakers she had concerns about the proposal, in part because of the volume of cases the department’s 20 hearing officers handle. The department averages about 25,000 hearing requests each year, she said.
“That’s a lot to manage, which is why we’re protective of additional time-consuming steps in scheduling and dispatching decisions,” she said.
And Parrella said that even though hearing officers can consult with other department workers, people get fair hearings. “You’re appearing before someone who wants to accurately, consistently apply the law. And who’s impartial to the facts. That’s what people get.”
But Slossberg said that’s not how people who appeal DSS decisions feel.
“If you’ve ever had a constituent go through this experience, it feels incredibly unfair because they’re not making a decision based on what is in front of them as a result of the hearing,” she said of the hearing officers. “And your constituent doesn’t even know who they talked to, they don’t even know what conversations were had. They don’t have an opportunity to rebut that.”
Legal aid attorneys who represent clients in fair hearings say hearing officers should be allowed to ask for advice when they have questions about the law.
“But what we want is it done in a way where both sides have an opportunity to weigh in on it and present their version of what they think the laws is or the correct facts are,” said Kevin Brophy, director of elder law at Connecticut Legal Services in Waterbury.
Under the current system, Brophy added, the hearing officers are “communicating with our adversary without us having an opportunity to say what we think the law should be or what the facts should be.”
“You get the sense the hearing officer’s not impartial and the playing field is not level,” he said.
The majority of fair hearings involve fairly straightforward issues on which it’s unlikely that a hearing officer would consult DSS staff outside the hearing, said Shelley White, litigation director for the New Haven Legal Assistance Association.
When hearing officers consult with department attorneys outside the hearings, White said, it’s likely to be in cases involving issues with complex rules or high costs, like applications for Medicaid coverage of nursing homes, custom wheelchairs or intensive autism therapy.
“So it’s logical that the department really feels strongly about their position and why it’s so important to be sure that the hearing officer gets it right,” she said.
Because appeals often involve people whose applications for assistance programs were denied, the stakes in hearings can be high, determining whether a the person will receive benefits, noted Beverly Hodgson, an attorney and former Superior Court judge who wrote a recent Connecticut Law Tribune column in support of the bill.
Hodgson said in an interview she couldn’t think of any parallel situation in the legal system in which the decision-maker in an adversarial case would be permitted to hear from representatives of only one side on an issue that could affect the outcome of the case.
Of the lawyers for people appealing DSS decisions, she added, “It has to be frustrating to think that at the end of a hearing, that the opposing side may get another inning and you’re denied it, that you don’t know whether the hearing’s really over when you leave.”
Another critic of the way the hearings are handled, Sen. Beth Bye, D-West Hartford, became concerned after attending one with constituents who were appealing the number of hours of services the department approved for their daughter, who has physical and intellectual disabilities.
Although the parents had taken a day off work to attend and had brought their daughter, Bye said the department asked for a continuance after learning the family was represented by an attorney. The continuance was quickly granted, she said.
Bye said she learned during the hearing that the hearing officer and lawyer for the agency were being supervised by the same person.
Bye said the experience convinced her that people are not getting fair hearings. She said hearing officers should be separate from agency officials whose policies and budgets could be affected by the hearing.
“Something has to change so that our residents feel like they have a fair hearing,” she said.
Even if Malloy vetoes the bill, Bye said, officials should meet to address the process.
Mark Pazniokas contributed to this story.
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