Same rules as non-jury civil cases

The rules of evidence applicable in civil nonjury trials apply in administrative hearings. O.C.G.A. § 24-1-2(d)(4); Ga. R. & Regs. § 616-1-2-.18(1)(a). Irrelevant, immaterial, or unduly repetitious evidence shall be excluded. When necessary to ascertain facts not reasonably susceptible of proof under such rules, evidence not admissible thereunder may be admitted, except where precluded by statute, if it is of a type commonly relied upon by reasonably prudent men in the conduct of their affairs or if it consists of a report of medical, psychiatric, or psychological evaluation of a type routinely submitted to and relied upon by an agency in the normal course of its business. However, a party’s failure to call an available witness to testify does not render such witness’ testimony “not reasonably susceptible of proof.”

Agencies shall give effect to the rules of privilege recognized by law. Ga. R. & Regs. § 616-1-2-.18(1)(c). Objections to evidentiary offers may be made and shall be noted in the record. O.C.G.A. § 24-1-103(a) provides that error shall not be predicated upon a ruling admitting or excluding evidence unless a substantial right is affected and (a) in the case of one admitting evidence there is a timely objection or motion to strike stating the grounds for the objection; or (b) in the case of a ruling excluding evidence, the substance of the evidence was made known to the court by an offer or proof. Of course, this presupposes there is a record. Subject to these requirements, when a hearing will be expedited and the interest of the parties will not be prejudiced substantially, any part of the evidence may be received in written form. O.C.G.A. § 50-13-15(1).

Burden of Proof

The applicant has the burden of proof with an initial application. The Agency has the burden of proof when reducing, suspending or terminating a benefit. Ga. R. & Regs. § 616-1-2-.07(1)(d).

Rules must be fair, but need not be formal

In the context of Social Security administrative hearings, the Supreme Court held “(a) the Congress granted the Secretary the power by regulation to establish hearing procedures; (b) strict rules of evidence, applicable in the courtroom, are not to operate at social security hearings so as to bar the admission of evidence otherwise pertinent; and (c) the conduct of the hearing rests generally in the examiner’s discretion. There emerges an emphasis upon the informal rather than the formal. This, we think, is as it should be, for this administrative procedure, and these hearings, should be understandable to the layman claimant, should not necessarily be stiff and comfortable only for the trained attorney, and should be liberal and not strict in tone and operation. This is the obvious intent of Congress so long as the procedures are fundamentally fair.” Richardson v. Perales, 402 U.S. 389 (1971).

Documentary evidence

Documentary evidence may be received in the form of copies or excerpts if the original is not readily available. Upon request, parties shall be given an opportunity to compare the copy with the original or have it established as documentary evidence according to the rules of evidence applicable to the superior courts of this state. O.C.G.A. § 50-13-15(2). Where practicable, a copy of each exhibit identified or tendered at the hearing shall be furnished to the Court and the other parties when first presented at the hearing unless otherwise directed by the Court. Ga. R. & Regs. § 616-1-2-.18(1)(b).

Documentary evidence must be authenticated

In Georgia Department of Community Health v. Medders, 292 Ga. App. 439 (2008), the ALJ erred in using an unauthenticated document to calculate the amount of a transfer of resources penalty. There, the DCH witness who testified was not the caseworker who made the decision to deny the Medicaid application. The witness DCH produced did not know whether the amount subject to the transfer penalty was the value of an entire estate, or the value of a renounced interest in the estate. Because the document was not authenticated and there was no evidence to establish the amount subject to the transfer penalty, there was no evidence to support the ALJ’s finding regarding the penalty amount.

Medical issues

Of course, an applicant/recipient is free to develop his or her own evidence. However, if the hearing involves medical issues such as those concerning a diagnosis, an examining physician’s report, or a medical review team’s decision, and if the hearing officer considers it necessary to have a medical assessment other than that of the individual involved in making the original decision, such a medical assessment must be obtained at agency expense and made part of the record. 42 C.F.R. § 431.240(b). Federal funds are available to pay for these medical evaluations. 42 C.F.R. § 431.250(f)(3). See Ga. R. & Regs. § 616-1-2-.18(1)(d) regarding expert testimony.

In Richardson v. Perales, 402 U.S. 389 (1971), in the context of a Social Security Disability appeal, the Supreme Court held “that a written report by a licensed physician who has examined the claimant and who sets forth in his report his medical findings in his area of competence may be received as evidence in a disability hearing and, despite its hearsay character and an absence of cross-examination, and despite the presence of opposing direct medical testimony and testimony by the claimant himself, may constitute substantial evidence supportive of a finding by the hearing examiner adverse to the claimant, when the claimant has not exercised his right to subpoena the reporting physician and thereby provide himself with the opportunity for cross-examination of the physician.”

Cross-examination

A party may conduct such cross-examination as shall be required for a full and true disclosure of the facts. O.C.G.A. § 50-13-15(3); 42 C.F.R. § 431.242(e).

Privileges

Except as otherwise required by law, all requirements or privileges relating to evidence or procedure shall apply equally to agencies and persons. O.C.G.A. § 50-13-22.

Judicial notice

Official notice may be taken of judicially cognizable facts. In addition, official notice may be taken of generally recognized technical or scientific facts within the agency’s specialized knowledge. Parties shall be notified either before or during the hearing, by reference in preliminary reports or otherwise, of the material noticed, including any staff memoranda or data, and they shall be afforded an opportunity to contest the material so noticed. The agency’s experience, technical competence, and specialized knowledge may be utilized in the evaluation of the evidence. O.C.G.A. § 50-13-15(4).

Subpoenas

If a witness is subpoenaed, subpoenas shall be issued without discrimination between public and private parties. When a subpoena is disobeyed, any party may apply to the superior court of the county where the contested case is being heard for an order requiring obedience. Failure to comply with such order shall be cause for punishment as for contempt of court. The costs of securing the attendance of witnesses, including fees and mileage, shall be computed and assessed in the same manner as prescribed by law in civil cases in the superior court. O.C.G.A. § 50-13-13(a)(7); § 50-13-13(b).

O.C.G.A. § 50-13-41(b) provides “Article 2 of Chapter 13 of Title 24 shall govern the issuance of subpoenas issued under this article, except that the administrative law judge shall carry out the functions of the court, and the clerk of the Office of State Administrative Hearings shall carry out the functions of the clerk of the court. Subpoenas shall be enforced pursuant to subsection (a) of this Code section.”

Failure to subpoena opposing witneseses may prevent an appellant from objecting to expert reports based on hearsay. See Richardson v. Perales, 402 U.S. 389 (1971) (where report of examining physician was admissible despite appellant’s objection based on hearsay and inability to cross-examine witness).

Weight of evidence

The ALJ determines the weight given to any evidence based on its reliability and probative value. Ga. R. & Regs. § 616-1-2-.18(3).

Excluded Evidence; Proffers

Whenever any oral testimony sought to be admitted is excluded by the Court, the proponent of the testimony may make an offer of proof by means of a brief statement on the record describing the excluded testimony. Whenever any documentary or physical evidence or written testimony sought to be admitted is excluded, it shall remain a part of the record as an offer of proof. Ga. R. & Regs. § 616-1-2-.18(1)(e).

Rule of Construction

In Cook v. Glover, 295 Ga. 495 (2014), the Georgia Supreme Court found that federal statutory provisions adopted in the Deficit Reduction Act of 2005 relating to annuities were ambiguous. CMS had released a letter on July 27, 2006, interpreting the annuity provisions, and DCH had adopted CMS’s construction. Relying on Chevron U.S.A. v. Natural Resources Defense Council, 467 U.S. 837 (1984), the Court found it was appropriate to give effect to a permissible construction adopted by the agency. In a concurring opinion, Justice Nahmias indicated he was dubious of the majority’s conclusion since the CMS opinion letter being relied upon was not the result of a formal adjudication or notice-and-comment rule making. Justice Nahmias’ concurrence appears to be consistent with Pruitt Corporation v. Georgia Department of Community Health, 284 Ga. 158 (2008), where the Court held that the Department’s manual was not entitled to judicial deference since it was not the product of a duly enacted statute, rule or regulation. In Georgia Society of Ambulatory Surgery Centers v. Georgia Department of Community Health, 309 Ga. App. 31 (2011), the Court of Appeals indicated that the test of an administrative rule is twofold: whether it is authorized by statute and whether it is reasonable. … In applying this test, we have explained that the interpretation of a statute by an administrative agency which has the duty of enforcing or administering it is to be given great weight and deference. … However, an administrative rule which exceeds the scope of or is inconsistent with the authority of the statute upon which it is predicated is invalid.”