Statement of Basis and Purpose of Proposed Rule
The Office of Administrative Trials and Hearings (“OATH”) is modifying the provisions in Chapter 6 in Title 48 of the Rules of the City of New York related to the Health Tribunal at OATH. The changes modify various procedures relating to pre-hearing rescheduling, adjournments, notifications, defaults, appeals, conduct of participants, and other matters in order to simplify, clarify and expedite the adjudications process. Where appropriate, the changes make the procedural rules at the Health Tribunal at OATH consistent with those of other tribunals at OATH.
Specific Amendments to be Enacted
In Section 6-01“Definitions Specific to this Chapter,” the term “Hearing Examiner” is changed to “Hearing Officer”.
Section 6-02 “Jurisdiction, Powers and Duties of the Health Tribunal at OATH” is changed to permit the Tribunal to adjudicate Notices of Violation issued by any agency consistent with applicable law. It also reflects that settlement conferences are not being held at the Tribunal.
Section 6-03 “Proceedings before the Health Tribunal at OATH” simplifies the requirements of service by no longer requiring certified or registered mailing.
Section 6-04 “Appearances” is reordered, with some changes. An appearance must be at the time, as well as on the date, of the scheduled hearing. This section sets forth what happens when either the petitioner or the respondent fails to appear at the scheduled time. In addition:
- The provisions in subdivision (b) detailing requirements for appearances by mail are moved to Section 6-05 “Adjudications by Mail and Online.”
- The provisions in subdivision (c) for pre-hearing adjournments are moved to Section 6-06 “Pre-Hearing Requests to Reschedule.”
- The provisions in subdivision (d) for requests for adjournments made at the hearing are moved to Section 6-07 “Requests for Adjournments.”
- The provisions in subdivision (e) detailing the procedures for defaults upon a failure to appear by respondent are moved to Section 6-08 “Default” and Section 6-09 “Request for a New Hearing after a Failure to Appear.”
- New subdivision (c) and (d) detail procedures for appearances by the petitioner and what happens when a petitioner fails to appear at the scheduled time.
Section 6-05 “Adjudications by Mail and Online” is renamed from the previous title “Hearings and adjudications in person, by mail, or by telephone.” References in subdivisions (a), (b), (c), (d), (e), (g), (h), (i) and (j) of this section to hearings in person or by telephone are moved to new Section 6-10 “Hearing Procedures.” Subdivision (f) of this section, about the appearance of inspectors is moved to section 6-11 “Appearance of Inspectors”.
Section 6-06 “Subpoenas” is deleted in its entirety. The Hearing Officer’s ability to issue subpoenas remains in Section 6-02(c) (3).
New Section 6-06 is titled “Pre-Hearing Requests to Reschedule”.
- It sets forth the procedures by which respondents may make a request for a hearing to be rescheduled and reduces the number of requests to one per party for each violation.
- It extends the time, up until the time of the scheduled hearing, in which a respondent may request to reschedule a hearing.
- It requires that the petitioner notify the respondent three days before the hearing if the petitioner requests to reschedule the hearing.
Section 6-07 “Requests for Adjournments” contains provisions regarding requests for adjournments made at a hearing, previously contained in Section 6-04(d). It lists factors that will be considered in deciding whether there is good cause.
Section 6-08 “Defaults” contains provisions previously contained in Section 6-04(e) regarding the consequences of a failure to appear at a hearing. Default decisions no longer need to be rendered by a hearing officer.
Section 6-09 “Request for a New Hearing after a Failure to Appear (Motion to Vacate a Default)” contains provisions previously contained in Section 6-04(e) regarding procedures for motions to vacate a default.
- Subdivision (c) lists circumstances to be considered in determining “reasonable excuse” for a respondent’s failure to appear at the hearing.
- Subdivision (e) provides that if a motion to vacate a default has been previously granted and a new default decision has been issued for the same Notice of Violation, the second default decision will not be opened except in exceptional circumstances and in order to avoid injustice.
- Subdivision (f) provides that a motion to open a default received more than one year after the default decision will not be granted except in exceptional circumstances and in order to avoid injustice.
Section 6-10 “Hearing Procedures” is a new section that incorporates with some modifications, provisions contained in subdivisions (a), (b), (c), (d), (e), (g), (h), (i) and (j) of former Section 6-05 “Hearings and adjudications in person, by mail, or by telephone.”
- The provision in subdivision (b), “The hearings shall be open to the public,” is removed to accommodate the conduct of hearings by mail, telephone and online.
- Subdivision (d) requires that counsel or authorized representatives who appear on behalf of respondents have sufficient staffing to complete their scheduled hearings. It also gives the Tribunal discretion to determine the order in which the Notices of Violations are heard.
Section 6-11 “Appearance of Inspectors” is a new section that incorporates with some modifications, the provisions that were previously contained in Section 6-05(f).
- Subdivision (a)(1) permits a respondent to make a pre-hearing request for the inspector up to three, rather than seven, business days prior to the hearing. Such request is considered as a request to reschedule the hearing and follows the rules outlined in Section 6-06.
- Subdivision (b) permits a hearing to be adjourned no more than two, rather than three, times for the presence of the officer.
Section 6-12 “Payment of Penalties” is a new section that incorporates with some modifications the provisions formerly found in Section 6-05(i) regarding the imposition of late payment penalties if the fine is not paid on time.
Section 6-13 “Disqualification of Hearing Officers” contains provisions formerly found in Section 6-07. There are no major substantive rule changes in the section.
Section 6-14 “Appeals” incorporates with some modifications the provisions formerly found in Section 6-08.
- Subdivision (c) describes the record to be considered on appeal and limits the evidence to that which was presented at the hearing.
Section 6-15 “Registered Representatives” incorporates with some modifications the provisions formerly found in Section 6-09 “Registration and disqualification of certain authorized representatives”. Family members of respondents are exempt from the registration requirement. The Tribunal will not charge a fee to register representatives or issue a registration card and identification number. The new rule is consistent with procedures currently in place at the Environmental Control Board.
Section 6-16 “Misconduct” is a new section that enumerates prohibited conduct by a party, witness, representative or attorney, including prohibited communications. It also provides penalties for misconduct and procedures for imposing discipline on attorneys or representatives.
Section 6-17 “Computation of time” continues, with one minor modification, former Section 6-10 “Computation of time”. Subdivision (b) of this section is modified to provide that if a Tribunal decision is mailed to a party, five, rather than seven, days will be added to the period of time within which the party has the right or requirement to act.
The Health Tribunal at OATH’s authority for these rules is also found in section 1049 of the New York City Charter.