Honorable Robert Bunda

President of the Senate

Twenty-Second State Legislature

Regular Session of 2004

State of Hawaii

Sir:

Your Committee on Human Services, to which was referred H.B. No. 2023, H.D. 2, entitled:

begs leave to report as follows:

The purpose of this measure is to amend the Department of Human Services' hearing process to require that hearings be conducted in a de novo manner where no evidentiary presumptions would apply.

Testimony in support of the measure was submitted by the Legal Aid Society of Hawaii and the Hawaii Disability Rights Center. The Department of Human Services submitted testimony in opposition and the Attorney General submitted comments.

Your Committee finds that the use of the term "de novo" is not technically accurate to describe the nature of these hearings. "De novo" implies a second hearing to review a prior evidentiary proceeding. In the context of these applications for assistance, the prior determination by the Medical Review Board is not a hearing. Thus, the fair hearing which is held pursuant to section 346-12, Hawaii Revised Statutes, is actually the only evidentiary hearing which is conducted in the process and the term "de novo" is not applicable. Additionally, your Committee finds that the law cannot state that no presumptions shall apply at the hearing. Presumptions are intrinsic to the nature of legal proceedings and will always apply where appropriate.

Furthermore, concerns from the Legal Aid Society and the Hawaii Disability Rights Center, which reflected their perception that the hearing officers were giving undue weight and deference to the opinion of the Medical Review Board and were not properly considering the medical evidence, were submitted on behalf of the applicants. While your Committee is not in a position to assess whether this is the case, it wishes to reiterate that all evidence which is properly admitted before the hearing officer is to be considered on its own merits as the hearing officer deems fair and appropriate. The function of the hearing officer is to exercise independent judgement and to arrive at a determination of which item of evidence the officer believes is more persuasive. While the hearing officers may choose, in any given case, to agree with the opinion of the Medical Review Board or to agree with a contrary opinion held by another physician or psychologist, your Committee feels that it is important that each case be decided fairly and independently and that no preconceived additional deference be afforded to the Medical Review Board or a claimant.

Accordingly, your Committee has replaced the language in this bill with a provision that it believes will clarify the Legislature's intent that these matters be decided in a fair, impartial manner. Your Committee understands that it is also the intent of the Department of Human Services to adopt administrative rules that may address the concerns presented to this Committee by the sponsors of this measure. In the event that this clarifying language as well as any administrative rules do not achieve the intent of this legislation, it is a matter which can be revisited during the next legislative session.

As affirmed by the record of votes of the members of your Committee on Human Services that is attached to this report, your Committee is in accord with the intent and purpose of H.B. No. 2023, H.D. 2, as amended herein, and recommends that it pass Second Reading in the form attached hereto as H.B. No. 2023, H.D. 2, S.D. 1, and be referred to the Committee on Judiciary and Hawaiian Affairs.