The Department of Children and Family Services seeks an exception, under Rule 28-108.001, Florida Administrative Code to Uniform Rule of Procedure paragraph 28-106.213(5)(b), Florida Administrative Code, that will apply in public assistance hearings conducted in accordance with Section 409.285 F.S., by agency hearing officers under the authority granted in Section 120.80(7) F.S. The exemption is needed to improve client access to the hearing process and to enhance the operational efficiency in providing fair hearings. The Department’s Rule 65-2.057, Florida Administrative Code, will be amended to provide that the hearing officer will administer the oath for all witnesses including those appearing by telephone.

UNIFORM RULE FROM WHICH EXCEPTION IS SOUGHT: 28-106.213 Evidence paragraph (5)(b).

SUMMARY OF GROUNDS FOR EXCEPTION: To make the fair hearing process more accessible to the Department’s public benefits clients; to increase the Department’s operational efficiency in providing fair hearings.

The Department conducts administrative hearings involving the denial, reduction, or suspension of federally-funded public benefits pursuant to Section 409.285, Florida Statutes. These hearings are administrative proceedings governed by Chapter 120, Florida Statutes, but are conducted by Department hearing officers pursuant to Section 120.80(7), Florida Statutes. These hearings are conducted in accordance with the Uniform Rules of Procedure, except where the Administration Commission has previously granted exceptions to enable the Department to conform the hearings to federal requirements. The Department has promulgated Rules 65-2.042, et seq., Florida Administrative Code, to address the procedures that differ from the Uniform Rules.

Paragraph 28-106.213(5)(b), F.A.C., requires that, when an individual appears by telephone, there must be a notary present to administer the oath. Generally, petitioners in Department fair hearings will appear by telephone from their home or place of employment. These petitioners do not have ready access to notaries. An exemption to the notary requirement will allow the Department to provide clients a meaningful opportunity to appear at hearings by telephone. Many of the Department’s clients involved in these hearings are elderly or disabled, and most are financially disadvantaged. Many must rely on public transportation, paratransit, or friends and family to attend hearings. Some clients may even refrain from requesting or following through with a fair hearing because of the difficulty attendant to physical appearance at a hearing or finding a notary to go to the petitioner’s location to swear them in for telephonic testimony. At a minimum, petitioners will save time away from their home or employment and travel cost to attend the hearing. Telephone hearings will be cost effective for the Department both in reduced staff travel and the more efficient use of hearing officer time.

The federal programs allow the hearings to be conducted by telephone with the petitioner’s agreement. Medicaid program policy requires the state to make special plans, including conducting the hearing by telephone, as necessary, for the convenience of the claimant.

Section 120.569(2)(f), F.S., grants the hearing officer the power to swear in witnesses and take testimony under oath. Section 837.02, F.S., provides that witnesses who make a false statement under oath may be subject to prosecution. This exception will not eliminate the requirement that testimony in a fair hearing be sworn; nor will it protect individuals from the legal consequences of perjury. The exception simply allows the hearing officer to administer the oath telephonically. The Department will provide appropriate procedures for hearing officers to administer the oath telephonically, including identification verification and advising witnesses of the legal effect of the oath. The hearing is recorded and the recording is maintained as a part of the permanent record.

THE ADMINISTRATION COMMISSION IS EXPECTED TO REVIEW THE DEPARTMENT’S PETITION FOR EXCEPTION AT THE MARCH 10, 2009, CABINET MEETING. (This notice was previously published in the Florida Administrative Weekly, Vol. 35, No. 3, January 23, 2009, for the petition to be reviewed at the February 24, 2009 Cabinet meeting. That meeting was cancelled.)

THE PERSON TO BE CONTACTED FOR COPY OF THE PETITION FOR EXCEPTION: John Pritchard, Department of Children and Families, Office of Appeal Hearings, Building 5, Room 203, 1317 Winewood Blvd., Tallahassee, FL 32399-0700, (850)488-1429.