Representing the disabled.

"Administrative Law Section works to help disabled adults and children" in the March 1 News presents a skewed perspective on procedural barriers facing disabled persons challenging benefit decisions. It asserts claimants are being stymied by a 2006 decision by the First District Court of Appeal in J.M. v. APD, 938 So. 2d 535, that stopped use of so-called "fair hearing" officers rather than independent Division of Administrative Hearing administrative law judges (ALJs).

As pro bono counsel for the disabled child in J.M., I would suggest the recurring problem that existed before and after J.M. is the frequent unavailability of competent legal representation for persons both profoundly disabled and indigent in administrative hearings. The argument that an independent tribunal creates a problem would be an argument for abolishing juvenile courts because abused children lack counsel.

In both agency and DOAH hearings, claimants may proceed pro se. Under the fair hearing process, where the executive sits in judgment of itself, having its agent decide who should win, in at least 90 percent of cases, the decision was in the agency's favor.

A total of 464 fair hearings of MAXIMUS's determinations were conducted from January 2003 to December 2005, of which 73 were pending receipt of a final order as of December 31, 2005. [M]AXIMUS's determinations were upheld in 367 (93.9 percent) of the 391 hearings with final orders, partially overturned in five cases (1.2 percent), and overturned in 19 cases (4.9 percent).

"MAXIMUS's Prior Service Authorization Process Meets Contract Requirements, But Improvements Are Needed," [OPPAGA], Rep. No. 06-17 (2/06), at 4; "Developmental Disabilities/Prior Services Authorization Reviews/Expansion Proposal" (10/2/03), at 4 ("The rate of denial of appeals by the Hearing Officer in Medicaid Fair Hearings (e.g. Final Order upholding the action by the Department/ MAXIMUS) is currently 97 percent.")

There is no requirement that the employee have a law degree, unlike ALJs who must have five years experience as a Florida lawyer. On a case-by-case basis, an ALJ may also be mandated...