PROVIDENCE — Department of Human Services hearing officers may no longer communicate off the record with the state agency’s staff about contested facts and opinions unless the people seeking government benefits have a chance to respond, the state Supreme Court ruled last week.

The issue arose when a Central Falls man and a Chepachet woman applied to the Department of Human Services for medical assistance in 2005, and the agency’s Medical Assistance Review Team determined they were not disabled and not eligible for Medicaid.

David Arnold and Pauline Belanger took their separate cases to Superior Court, claiming the department’s hearing officers were having off-the-record communications about cases without notifying the other side. The agency contended such communication was rare and did not violate the Administrative Procedures Act.

But Superior Court Judge Stephen J. Fortunato Jr., who has since retired, disagreed, ordering hearing officers to avoid “ex parte” communication with agency staff about contested facts and opinions. The agency appealed.

In a 13-page opinion written by Chief Justice Frank J. Williams, the Supreme Court backed Fortunato’s ruling, saying, “In short, no litigious facts should reach the decision-maker off the record in an administrative hearing.”

Hearing officers may communicate with agency staff about hearing schedules, procedural matters and general information about how hearings are conducted, and as long as they don’t discuss the contested facts of a case, hearing officers may discuss general policy matters and consult state and federal regulations, the high court said.

But unless the other side is given a chance to respond and cross-examine, Department of Human Services hearing officers may not communicate with anyone, including agency staff, about contested facts such as test results, diagnostic information or an overall assessment of an applicant’s disability, the court said.

“In other words, DHS hearing officers are required to guard against the inherent unfairness of secret evidence,” Williams wrote, “but they are not required to isolate themselves from the agency.”

The Administrative Procedures Act prohibits hearing officers from communicating “with any person or party” about any issues of fact or law, but it contains an exception that allows agency members to communicate with other agency members.

The Department of Human Services argued for a broad interpretation, saying the act allows “ex parte” communication with any agency staff member except those directly involved in determining whether someone is disabled. But Williams said that interpretation “simply cannot be harmonized with the other provisions” of the Administrative Procedures Act.

Arnold had cross-appealed, arguing that Fortunato’s ruling left open the possibility that members of the agency’s Medical Assistance Review Team could become a fact-finder at hearings, thereby violating a constitutional separation of functions.

But the court rejected the cross-appeal. While the ruling makes clear that hearing officers can’t communicate off the record with Medical Assistance Review Team members about the merits of a case, the court said those team members don’t become fact-finders simply by attending hearings.

“The hearing officer is the fact-finder,” Williams wrote. “And as long as the parties are allowed to cross-examine any [Medical Assistance Review Team] member who is providing information at a hearing, a hearing officer’s decision to consider such information is well within his or her discretion.”

Gretchen Bath, a Rhode Island Legal Services staff lawyer who represented Arnold and Belanger, said she was pleased with the ruling.

“The Supreme Court agreed with us that what the department was doing at these hearings wasn’t fair and it was contrary to state law,” Bath said. “You don’t have to be a lawyer to understand that a hearing isn’t fair if a hearing officer goes and consults off the record with unnamed others about your case and then issues a decision based on what they hear and never tells you that they did it.”

While the agency said such communication was rare, Bath said, “evidence from before the suit was filed showed it was a fairly frequent practice.” She said she’d be surprised if other state agencies were involved in this kind of activity, but if they were, “this case is a warning to stop doing that.”

The Rhode Island Disability Law Center and the Rhode Island Affiliate of the American Civil Liberties Union filed a joint friend-of-the-court brief in the case. And Steven Brown, executive director of the Rhode Island ACLU, said, “The court’s decision reaffirms a basic principle of due process, as established in state law, that the government should not rely on secret evidence in making decisions that affect people seeking important state benefits.”

Department of Human Services Assistant Director Jacqueline G. Kelley, a lawyer who argued the case before the Supreme Court, said the department viewed the ruling as a major loss. “We were just looking for clarification about how far ‘ex parte’ can go,” she said. “Now we know what we can and can’t do.”

Kelley said testimony showed that such communication was rare, adding, “This was not a make-or-break issue for our cases.”

Kelley also noted that the court rejected the cross-appeal, and that the Supreme Court provided greater guidance than Fortunato had about what matters could be discussed by hearing officers. “So we were fairly pleased,” she said.

efitzpat@projo.com