When someone loses an OCFS/SCR fair hearing, they often assume the case is over. But a fair hearing decision is not the last word. In many cases, the next step is an Article 78 in New York Supreme Court.
This post is a practical guide to (1) how courts review OCFS fair hearing decisions, (2) what issues tend to win (and what issues usually lose), and (3) how to build the hearing record so that your Article 78 does not live or die on a single paragraph in the ALJ’s decision.
If you want the big-picture overview first, start here: How to appeal an indicated ACS/CPS case in New York.
What an Article 78 is (and why record-building matters)
An Article 78 is the procedural vehicle used to challenge many final determinations of state and local agencies. In SCR/OCFS cases, the court is typically not re-trying the facts. The fight is usually about whether the agency decision is supported by the administrative record and complies with the governing law.
That is why hearing-day decisions – what exhibits were admitted, what objections were made, what was proffered, and what the ALJ actually addressed – are often more important than the rhetoric in the post-hearing brief.
Know the time pressure
Many Article 78 proceedings must be commenced within four months of the final determination. See CPLR 217.
Two different standards: fair preponderance vs. substantial evidence
At the fair hearing, ACS/LDSS generally has to prove maltreatment by a fair preponderance. Courts, by contrast, usually review whether the agency determination is supported by substantial evidence – a lower threshold than preponderance, but still more than speculation.
The Fourth Department’s decision in Hastings v. OCFS (PDF) contains a useful discussion of the substantial evidence concept in the SCR context, and it also demonstrates that R&R determinations must have a rational, evidence-based explanation.
For a detailed explanation of the fair preponderance standard (and how to attack it), see: The fair preponderance standard.
The most common reversible errors in OCFS/SCR cases
Courts rarely reverse because a judge simply ‘disagrees’ with the ALJ. Reversals tend to cluster around identifiable legal and record-based problems, such as:
- Conclusory R&R findings. A checklist statement that the report is ‘relevant and reasonably related’ without explaining the guideline factors and the evidence.
- Ignoring rehabilitation evidence. Where the record contains uncontroverted evidence of no repeat behavior and meaningful treatment or change, a bare statement of ‘no rehabilitation’ can be vulnerable.
- Misstating the record. Decisions that attribute facts to witnesses who never said them, or that ignore key contradictory documents.
- Due process and disclosure problems. If the subject is surprised by evidence, cannot meaningfully respond, or the record is incomplete in a way that affects fairness.
- Overreliance on inference without support. Substantial evidence is not built from rumor or conjecture; it must be grounded in the record.
Your hearing-day preservation checklist
If you want a real chance in an Article 78, you need a clean administrative record. Consider this checklist:
- Demand the agency packet early. If you do not receive the exhibits in time to prepare, put that on the record.
- Object clearly and specifically. If a document is unreliable or lacks foundation, say why. If you are overruled, the objection is still part of the record.
- Make an offer of proof. If the ALJ excludes evidence you believe is important, summarize what it would have shown.
- Force the R&R analysis. In closing, walk through the guideline factors you want addressed and tie them to your exhibits.
- Request a written decision that addresses the key issues. A conclusory decision is often the seed of an Article 78.
What you can ask the court to do
Depending on the error, the court may:
- Annul the determination (in whole or in part).
- Remit for a new determination or further proceedings (a ‘remand’).
- Annul only the R&R portion and direct that OCFS be precluded from disclosing the indicated report for provider or licensing inquiries (as in Hastings).
Where Jeter v. Poole fits into Article 78 strategy
If you are litigating broader legal questions about SCR amendment standards and the statutory framework, our analysis of Jeter v. Poole may be relevant background for your strategy.
Talk to a lawyer before your deadlines run
Article 78 practice is deadline-driven and record-driven. If you need help assessing whether an ALJ decision is vulnerable on substantial evidence, R&R analysis, or legal error – and how to frame the issues – see: OCFS Article 78 appeals.
