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91. How should I present my case at the hearing?

The hearing is your last chance to make sure DTA has the facts supporting your position, including any documents.

  • Try to get a legal advocate to represent you at the hearing or to give you advice about representing yourself. 106 C.M.R. § 343.150. See Appendix I for a list of Legal Services offices. You can also bring a friend or relative for support or to assist you. 106 C.M.R. § 701.350.
  • DTA should schedule you for a face-to-face hearing unless you ask for a video or telephone hearing. For most people, a face-to-face hearing is better. It is easier to understand what is happening at a face-to-face hearing, easier to handle documents, and easier for the hearing officer to determine who is telling the truth. 
  • If you need an interpreter, you should ask for one when you write your hearing request and at the hearing. 106 C.M.R. § 343.410. If you forgot to ask for an interpreter on your hearing request, you also can call the Division of Hearings at 1-800-882-2017 to request one for the hearing.
  • You or your advocate can look at your entire file before the hearing (you need to get an appointment) and can use any papers from your file as proof. 106 C.M.R. § 343.340. This includes any information in your electronic (Beacon) file, and DTA must print out copies of any screens or information from your electronic file that you request. See DTA Transitions, January 2007, p. 7. You or your advocate can also ask DTA to send you papers and information from your file. 106 C.M.R. §§ 343.340.
  • You should bring with you any proof you have. This includes proof you did not have before. The hearing officer must accept proof even if was not provided to DTA prior to the hearing. 106 C.M.R. §§ 343.410, 343.500(A).
  • If your hearing is being conducted by telephone or video, you should insist on an opportunity to fax documents to the hearing officer. You should also insist that copies of any document DTA presents to the hearing officer be copied for you.
  • You can bring witnesses. You can also get a paper ordering a witness to
    come to your hearing; this paper is called a "subpoena." 106 C.M.R. § 343.360. For example, you could have a subpoena sent to the vocational expert who reviewed your case and decided you are not disabled based on vocational factors. Talk with a legal advocate about how to do this.

Face-to-face hearings and most telephone and video hearings take place at your local DTA office in a separate room. Only the people who need to be there are allowed in—the DTA worker(s), you, your representative (if any), any witnesses, and the hearing officer. Everyone must testify under "oath or affirmation." The hearing must be recorded. 106 C.M.R. §§ 343.450, 343.500, 343.550.

Disability related hearings:

If the hearing is about whether you meet the disability requirements for the EAEDC program, a representative from the Disability Evaluation Service (DES) will testify over a speaker phone about DES’ decision. The DES representative who testifies may not be the health professional who made the disability decision.

  • You have the right to ask the DES representative to explain the specific reason for the DES decision. You can also remind the hearing officer that this individual, and in fact no one at DES, has personally examined you. You can argue that your treating health provider’s opinion should be given more weight in the appeal than the opinions of medical persons who have never examined you.
  • If you believe that DTA is using evidence that is unfair or unreliable—for example, an accusation from an unidentified person—tell the hearing officer that you "object." Objecting may make the hearing officer think twice about relying on this information. Also, if you lose the hearing and appeal to court, the court can consider whether the hearing officer made a mistake by admitting the evidence you objected to.
  • If you are not receiving benefits, you can ask the hearing officer to decide your case right away with an "interim" (not final) decision.

Advocacy Reminders:

  • DTA regulations allow it to schedule your hearing by telephone or video, 106 C.M.R. § 343.120, but it is current DTA policy not to schedule a telephone hearing unless you ask for one, and DTA does not currently schedule video hearings. If DTA schedules you for a telephone or video hearing and you want a face-to-face hearing, call the Division of Hearings right away (617-348-5321 or 1-800-882-2017) and say you want a face-to-face hearing. If DTA won’t give you a face-to-face hearing, be sure to say on the record of the hearing that you want a face-to-face hearing.
  • The hearing officer must take evidence and decide the issues “de novo” (anew) based on what is presented at the hearing. The eligibility date is the date all eligibility conditions were met regardless of when the evidence was submitted. 106 C.M.R. § 343.500.
  • You can ask the hearing officer to keep the record open to submit additional evidence after the hearing date. 106 C.M.R. § 343.500.
  • If you think the interpreter is not interpreting correctly, object to the hearing and ask for a different interpreter. See Question 82. DTA Field Operations Memo 2012-11(March 19, 2013).
     

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