Detroit Base Coalition for the Human Rights of the Handicapped v. Department of Social Services , 158 Mich. App. 613 ( 1987 )

Per Curiam.

Plaintiffs appeal as of right from an order dismissing their complaint for failure to state a cause of action upon which relief could be granted, pursuant to MCR 2.116(C)(8). We affirm.

The facts are undisputed. Plaintiffs are recipients of public assistance benefits administered by the Department of Social Services and organizations which represent assistance beneficiaries (clients). Pursuant to statute, administrative hearings are provided to clients whose benefits have been denied, reduced, or terminated. Prior to 1980, such hearings were conducted before a hearing officer at the dss office of a client’s county of residence. In 1980, dss implemented a voluntary telephone conference hearing system whereby the hearing officer remained in the department’s Lansing or Detroit office while the client, local dss caseworkers, and any witnesses were present at the local dss office.

In August 1984, the department issued a Program Policy Bulletin stating that effective October 1, 1984, telephone conference hearings would be routinely conducted. The bulletin further stated that "[t]he client, the client’s representatives, witnesses and local office representatives will continue to assemble for the hearing at the local office,” but provided two exceptions under which the hearing officer would travel to another site: (1) where the client has a disability making travel impossible or impractical; and (2) where the client wishes to travel to one of four locations across the state in order to be present in the same room with the hearing officer. Clients would be reimbursed transportation costs exceeding $3.

On September 18, 1984, before the bulletin’s telephone conference policy became effective, three of the instant plaintiffs, along with others, filed an, original mandamus action in this Court and obtained a stay prohibiting implementation of the policy. The stay was lifted upon this Court’s decision in Goode v Dep’t of Social Services, 143 Mich App 756; 373 NW2d 210 (1985), lv den 424 Mich 882 (1986), holding that the policy did not violate the Open Meetings Act, MCL 115.261 et seq., MSA 4.1800(11) et seq.

On September 26, 1984, approximately one week after the Goode case was filed in this Court, the instant case was commenced in the Ingham Circuit Court. In this action, plaintiffs contended that the department’s decision to use telephone conference calls for hearings violates the Administrative Procedures Act, MCL 24.201 et seq.; MSA 3.560(101) et seq., and the department’s current rules. Plaintiffs were granted an ex parte temporary restraining order the same day. Dss subsequently filed a motion for summary judgment pursuant to GCR 1963, 117.2(1) [MCR 2.116(C)(8)] and plaintiffs filed their own motion for summary judgment pursuant to GCR 1963, 117.2(3) [MCR 2.116(C)(10)].

Oral arguments on the instant parties’ motions were heard by the circuit court on July 30, 1985. Plaintiff’s specifically declined to assert that dss’s policy violated any clients’ due process or other constitutional rights. The court ruled that, so long as telephone hearings were constitutionally fair, they violated no requirement of law. The court determined that the policy change did not constitute a change in or violation of dss rules and also concluded that dss did not need to promulgate a rule under the apa to implement its policy. Accordingly, the court granted summary disposition on behalf of dss and dissolved the temporary restraining order. Plaintiffs’ subsequent motion in the lower court for stay pending their appeal to this Court was denied. This Court thereafter denied a similar motion.

On appeal, plaintiffs first argue that the department’s policy bulletin constitutes a fundamental alteration of existing hearing procedures and should have been promulgated as a rule in accordance with the apa. We disagree.

MCL 400.9(1); MSA 16.409(1) requires the director of the department to promulgate rules for the conduct of hearings regarding assistance programs. Pursuant to this mandate, and in accordance with the apa, 1979 AC, R 400.907 was promulgated. This rule provides:

A hearing shall be conducted at a reasonable time, date, and place which normally shall be in the county where a claimant resides. Licensing cases may be heard in Lansing or in a county where the petitioner maintains a place of business.

The apa defines "rule” and pertinent exclusions in MCL 24.207; MSA 3.560(107):

"Rule” means an agency regulation, statement, standard, policy, ruling or instruction of general applicability, which implements or applies law enforced or administered by the agency, or which prescribes the organization, procedure or practice of the agency, including the amendment, suspension or rescission thereof, but does not include the following:

(h) A form with instructions, an interpretive statement, a guideline, an informational pamphlet or other material which in itself does not have the force and effect of law but is merely explanatory.

We agree with the trial court that the policy bulletin at issue here may fairly be considered an application of 1979 AC, R 400.907 that hearings take place in a reasonable time and manner and thus constitutes a functional interpretation of that rule rather than a "new” rule which must itself be promulgated. So long as a directive is consistent with and within the scope of a properly promulgated rule, the directive itself may not require promulgation under the apa. Thompson v Dep’t of Corrections, 143 Mich App 29, 32-33; 371 NW2d 472 (1985). We find no inconsistency between the telephone conference policy and Rule 400.907. The rule mandates that hearings be held at a reasonable time and place. The bulletin merely provides an explanation of where and in what manner the hearing will be held.

Plaintiffs contend that the telephone conference policy conflicts with Rule 400.907’s provision that hearings "shall be conducted at a reasonable . . . place which normally shall be in the county where the claimant resides.” We disagree.

In Goode v Dep’t of Social Services, supra, this Court held that dss’s telephone conference hearings do not violate the Open Meetings Act. In so holding, the Goode Court stated:

The dispositive question is whether the performance of necessary governmental functions is open to the public. Rochester Community Schools Bd of Ed v State Bd of Ed, 104 Mich App 569, 578; 305 NW2d 541 (1981). We find no problem with the holding of hearings via teleconference calls. Such calls are heard through speaker phones and are audible to all in the room. Persons who wish to attend the hearing are allowed to do so and may attend at either location. The conference call setup actually increases the accessibility of the public to attend, as now more than one location is open to the public. [143 Mich App 759-760. Emphasis added.]

Although we recognize that the Goode Court was not specifically considering the issue of the location of the hearing as affected by the use of telephone conference calls, we agree with the above-emphasized language indicating that telephone hearings are located both where the hearing officer is located and where the remaining participants are located. We find such a construction to be reasonable in view of technological advances made in the last several decades. Further, we believe that such a conclusion comports with the apparent intent of Rule 400.907. The rule’s requirement that hearings normally take place in the client’s county of residence appears to be an effort to place the hearing at the location most convenient for the client, the witnesses, and local dss administration. The use of telephone hearings to allow communication with the hearing officer without the time and expense necessary to physically bring a hearing officer to the local county office does not alter the location of the remaining participants. The telephone hearing continues to serve the purpose of Rule 400.907. In this regard, we find plaintiffs’ reliance upon Sleeth v Illinois Dep’t of Public Aid, 125 Ill App 3d 847; 81 Ill Dec 117; 466 NE2d 703 (1984), unpersuasive since Illinois law specifically requires hearings to be held "in person” before the department.

Plaintiffs also claim that the department’s telephone hearing policy violates subsections (a), (c), and (f) of 1979 AC, R 400.912, which provide:

A party or his representative shall have opportunity:

(a) To examine the contents of his case file and all documents and records to be used by the agency at the hearing at a reasonable time before the date of the hearing as well as during the hearing.

(c) To bring witnesses.

(f) To question or refute any testimony or evidence, including opportunity to confront and cross-examine adverse witnesses.

Plaintiffs first assert that Rule 400.912(a) is violated because, if the client chooses to go to where the hearing officer is located, he cannot examine the local dss office case file "during the hearing.” This argument is based upon speculation. Nothing in the dss policy materials indicates that the client would be denied the opportunity to examine his or her case file at the local county office, nor is there any indication that dss would refuse to provide a duplicate file so that the file contents could be examined regardless of where the client chooses to present his case. Indeed, we note that MCL 15.231 et seq.; MSA 4.1801(1) et seq. entitles recipients to inspect and receive copies of their case files. Accordingly, we refuse to hold the telephone conference policy invalid on the basis of the hypothetical possibilities presented by plaintiffs.

Plaintiffs next assert that Rule 400.912(c) is violated because dss’s policy does not provide for payment of costs of transportation of witnesses from the local county to one of four hearing officer sites. Apparently, plaintiffs’ argument is that the possibly extra transportation costs would impede a client’s ability to "bring witnesses” personally before a hearing officer if he or she chooses to do so.

Dss’s policy does not directly prevent a client from bringing witnesses, contrary to Rule 400.912(c). To the extent that the right may be economically impeded, the infringement perhaps would be more properly challenged under Rule 400.907’s "reasonable time, date and place” requirement or under a constitutional due process claim. However, plaintiffs have specifically declined to assert their argument under the latter theory.

Essentially, this argument is also based upon speculation as to possible factual circumstances, which, it appears from plaintiff’s brief, have not yet occurred.- Particularly since dss’s policy provides for exceptions to its telephone-hearing policy which may alleviate plaintiff’s concerns we decline to rule that the telephone hearing policy violates Rule 400.912(c).

Finally, plaintiffs assert that Rule 400.912(f) is violated. It is unclear on what basis plaintiffs believe telephone hearings deny the opportunity to confront witnesses. Assuming that the argument is that the client or his representative, or the hearing officer is unable to view witnesses and observe nonverbal reactions, the argument has already been rejected in the context of due process guarantees. See, State ex rel Human Services Dep’t v Gomez, 99 NM 261, 268; 657 P2d 117 (1982), and Casey v O’Bannon, 536 F Supp 350, 353 (Ed Pa, 1982). As in Gomez and Casey, there is no reason to conclude here that a client cannot "confront” witnesses in any manner other than face-to-face. Dss’s policy does not violate Rule 400.912(f).

Affirmed.