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New York Codes, Rules and Regulations (NYCRR)

Title 9 Part 9740

Executive Department

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9 sections

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9 NYCRR 9740.1 - Introduction

Source version current through May 15, 2022

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NYCRR title agency
Executive Department
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Section source receipt
Source version current through
May 15, 2022

The fair hearing process for persons applying for or receiving coverage under the Program for Elderly Pharmaceutical Insurance Coverage is governed by this Part.

9 NYCRR 9740.2 - Notice of hearing

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Executive Department
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At least 10 calendar days prior to the date of the hearing, written notice shall be sent to the parties and their representatives. The notice shall inform them:

(a)of the date and place of the hearing and the appellant's right to a change in the date and place of the hearing where necessary;
(b)of the manner and means by which adjournments may be requested and granted;
(c)of the issues which are to be the subject of the hearing;
(d)of the manner in which the hearing will be conducted; and
(e)of the right of each party to be represented, to testify, to produce witnesses, to present documentary evidence and to examine opposing witnesses and evidence.

9 NYCRR 9740.3 - Scheduling and adjourning the hearing

Source version current through May 15, 2022

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NYCRR title agency
Executive Department
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Section source receipt
Source version current through
May 15, 2022
(a)The hearing shall be held at a time and place convenient to the appellant as far as practicable, taking into account circumstances such as the physical inability of the applicant to travel to the regular hearing location.
(b)Upon request, an appellant or the contractor may have the fair hearing rescheduled to another date upon a showing of good cause.
(c)The hearing officer may adjourn the hearing when he/she believes that due process rights of an appellant would best be served by adjourning the fair hearing or if there are special circumstances which make proceeding with the case fundamentally unfair.
(d)Requests to adjourn a fair hearing made prior to the date of the fair hearing must be made to the department in accordance with the instructions in the notice of fair hearing. Requests for adjournments made on the day of the fair hearing must be made on the record to the hearing officer.

9 NYCRR 9740.4 - Withdrawal or abandonment of a request for hearing

Source version current through May 15, 2022

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Dates and status
NYCRR title agency
Executive Department
Section status
Section source receipt
Source version current through
May 15, 2022
(a)A request for a hearing is considered abandoned if neither the appellant nor his/her representative appears at the time and place agreed upon for the hearing or neither the appellant or his/her representative has contacted the department to reschedule the hearing.
(b)The department will consider a hearing request to be withdrawn only under the following circumstances:
(1)the department has received a written statement from the appellant or his/her representative stating that the request for a fair hearing is withdrawn; or
(2)the appellant or his/her representative has made a statement to the hearing officer withdrawing the request on the record at the hearing.

9 NYCRR 9740.5 - Hearing officer

Source version current through May 15, 2022

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Dates and status
NYCRR title agency
Executive Department
Section status
Section source receipt
Source version current through
May 15, 2022
(a)The hearing officer shall have all the powers conferred by law to require attendance of witnesses and the production of books and records, and to administer oaths and to take testimony.
(b)The hearing officer shall preside over the hearing.
(c)The contractor shall make an opening statement describing the nature of the proceeding, the issues and the manner in which the hearing shall be conducted.
(d)The hearing officer shall elicit testimony, review the evidence submitted by the parties, determine the credibility of the witnesses, examine the parties if necessary, and shall make findings of fact relevant to the issues of the hearing.
(e)The hearing officer shall also prepare an official report containing the substance of what transpired at the hearing.

9 NYCRR 9740.6 - Who may be present at hearing

Source version current through May 15, 2022

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NYCRR title agency
Executive Department
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Section source receipt
Source version current through
May 15, 2022

The appellant, his/her representative (who may be an attorney or other persons representing him), counsel or other representative of the contractor, the executive director, members of the panel or their agents, witnesses of both parties or who may be called by the hearing officer, and such other persons as the hearing officer in his/her discretion may admit, with the consent of the appellant.

9 NYCRR 9740.7 - Fair hearing procedures

Source version current through May 15, 2022

Later State Register activity may affect this section.

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Dates and status
NYCRR title agency
Executive Department
Section status
Section source receipt
Source version current through
May 15, 2022
(a)Technical rules of evidence followed in a court of law shall not be followed, but evidence must be relevant and material.
(b)Irrelevant and unduly repetitious testimony and cross-examination may be excluded at the discretion of the hearing officer.
(c)The appellant shall have the burden of showing that its determination after reconsideration was incorrect.
(d)Records and documents in the possession of the contractor may be admitted as complete photocopies; however, the originals shall be available to the appellant or his/her representative for inspection at the direction of the hearing officer.
(e)The decision must be supported by and in accordance with substantial evidence.

9 NYCRR 9740.8 - Hearing record

Source version current through May 15, 2022

Later State Register activity may affect this section.

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NYCRR title agency
Executive Department
Section status
Section source receipt
Source version current through
May 15, 2022
(a)A verbatim record of the hearing shall be made.
(b)The fair hearing testimony, the fair hearing exhibits, the written determination after reconsideration, the hearing officer's official report containing the substance of what happened at the fair hearing, all papers and requests filed in the proceeding prior to the close of the fair hearing, the findings of the hearing officer and the fair hearing decision constitute the complete and exclusive record of the fair hearing.

9 NYCRR 9740.9 - Examination of the record after hearing

Source version current through May 15, 2022

Later State Register activity may affect this section.

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Dates and status
NYCRR title agency
Executive Department
Section status
Section source receipt
Source version current through
May 15, 2022

The record of the hearing shall be confidential, but it may be examined by either party or their representatives, the executive director, members of the panel or their agents at a place accessible to them and at a reasonable time.

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