Improving Access to Justice: Representational Accommodation in Administrative Hearings
By Pam Meotti and Johnette Sullivan with the Office of Administrative Hearings
A Hearing Scenario
Judge: Mr. Jones, during the prehearing conference you said you were looking for an attorney. Are you representing yourself today?
Mr. Jones: I’m not sure. My brother told me to wait to hear my name called.
Agency’s attorney: Your Honor, Mr. Jones called after the prehearing conference. He did not remember me and was confused when he found my notice of appearance. I understand Mr. Jones was injured in an accident a few months ago.
Judge: Mr. Jones, are you ready for hearing?
Mr. Jones: I’m not sure. My brother told me to wait until I heard my name called.
A Need for Representational Accommodation
The Office of Administrative Hearings (OAH) hears administrative appeals from more than twenty state and local agencies under the Administrative Procedure Act (APA). OAH’s mission is to independently resolve administrative disputes through accessible, fair, prompt processes and issue sound decisions. In OAH’s informal proceedings, the Administrative Law Judge (ALJ) may take steps to ensure that self-represented parties are fully heard, such as questioning witnesses and asking for additional exhibits. ALJs may also approve accommodations under the Americans with Disabilities Act (ADA). Given OAH’s informal process and the authority granted ALJs, most parties, including parties with a disability, represent themselves.
Even with accommodations, some parties with a disability may not be able to present their side of the story. This can lead to an imbalance in the hearing process that is incompatible with OAH’s mission and the ADA. To address this concern, OAH promulgated a rule, effective January 1, 2018, that allows OAH to appoint suitable representatives as a form of accommodation. WAC 10-24-010 was developed in response to a formal rule-making petition filed by the Seattle University Law School Korematsu Center for Law and Equality and Disability Rights Washington. An advisory workgroup, which includes the petitioners and other OAH stakeholders, is overseeing rule implementation.
Consider Mr. Jones from the opening scenario, who does not appear to understand the judge’s questions. Discussion about an injury from an accident hints that his memory lapse and confusion may be due to a disability. Even if the ALJ explains legal concepts and asks questions, the ALJ may not be able to elicit enough information to complete the record. Under OAH’s accommodation rule, the ALJ or the agency’s attorney may raise on the record that Mr. Jones may qualify for a suitable representative accommodation. With Mr. Jones’ consent, the ALJ may delay the hearing and refer Mr. Jones to the ADA coordinator for a private discussion about accommodations.
Who Can Serve as a Suitable Representative?
Attorneys and other qualified individuals may serve as suitable representatives. OAH has developed a free, online training program accessible from OAH’s website. Topics include procedural and substantive laws in OAH hearings and advocating for individuals with disabilities. Anyone interested in being a suitable representative may e-mail OAH’s ADA coordinator to arrange to complete the training (equivalent experience or other training may be substituted for some of the training). Efforts to make CLE credits available are in the works. This rewarding opportunity for pro bono service is open to attorneys, paralegals, Limited License Legal Technicians, and interns.
Even with accommodations, some parties with a disability cannot represent themselves in OAH hearings. In such cases, OAH appoints a suitable representative as a necessary ADA accommodation. By doing so, OAH ensures ADA compliance and improves access to justice for parties with qualifying disabilities. This program also presents an opportunity for performing valuable public service.