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Change #1-2008
January 1, 2008
An opportunity for a fair hearing must be provided to any household “aggrieved” by any action of the county department of social services (DSS) or coupon-issuing agency which affects the participation of the household in Food and Nutrition Services (FNS). A State Hearing Officer, who represents the State Director, Division of Social Services will hold the hearing.
The hearing must be conducted, the final decision rendered, and the household and the county department notified of the decision within 60 days of receipt of a request for a fair hearing.
A. The date of receipt of a request is the date the oral or written request is received by the county and is the date entered at the top of the DSS-1473. See also 705.09, Time Period for Requesting Hearing, and the DSS-1473, Request for State Appeal. Instructions for completion follow the illustration.
B. If the decision results in a decrease in the FNS unit’s benefits, make the change in the next scheduled issuance following receipt of the hearing decision.
C. If the decision results in an increase in the FNS unit’s benefits, make the change in the allotment within ten calendar days of the date of receipt of the hearing decision. Issue a supplement, if necessary, to meet this requirement. However, the county department may take longer than ten calendar days if the FNS unit’s normal issuance cycle will occur within 60 days from the date of the FNS unit’s request for a hearing.
The FNS unit may request and is entitled to receive a postponement of the scheduled hearing. The postponement cannot exceed 30 days, and the time limit for action on the decision may be extended for as many days as the hearing is postponed. For example, if a hearing is postponed by the household for ten days, notification of the hearing decision will be required within 70 days from the date of the request for a hearing.
Each FNS unit is informed on the application of its right to a hearing, of the method by which a hearing may be requested, and that its case may be presented by a FNS unit member or a representative, such as a legal counsel, a relative, a friend, or other spokesperson. In addition, whenever the FNS unit expresses disagreement with a county department action, it must be reminded of the right to request a fair hearing. If an individual or organization is available that provides free legal representation, the FNS unit must also be informed of the availability of that service.
The county department must offer a local (agency) conference to households that wish to contest a denial of expedited service under the procedures given in Section 320.02 B. 1.
A. The county must advised that an agency conference is optional and that it will in no way delay or replace the fair hearing process.
B. At a minimum, the local conference must include the FNS supervisor and/or the county director and a member of the FNS unit and/or its representative. The caseworker may also attend the conference.
C. If the local conference resolves the dispute, request that the FNS unit make a written withdrawal of its request for a hearing. Otherwise, a fair hearing must still be held.
D. Conferences for households contesting a denial of expedited service will be scheduled within two working days, unless the household requests that it be scheduled later or states that it does not wish to have a conference.
E. If the conference is agreed to by the recipient, it will normally be held in a county office. However, if a member of the household is bedfast or has great difficulty in traveling to the county office, the conference may be held where the individual resides or in such other place mutually agreed to.
F. At the conference, the household or household's representative must be given an explanation of the proposed action, be allowed to question the proposed action, and present any information that may affect the decision.
G. If, in a county conference, the county and the recipient agree that the latter is entitled to restoration of lost benefits, the recipient may be authorized this without a fair hearing or any action on the part of the State.
A. Mandatory Agency Conferences
County agencies are required to offer agency (local) conferences to any household wishing to contest a denial of expedited service under the procedures in Section 320.02 B. 1. These conferences (contesting a denial of expedited service) will be scheduled within two working days, unless the household requests that it be scheduled later or states that it does not wish to have an agency conference.
B. Optional Agency Conferences
The county department is highly encouraged to offer a conference to any household which disagrees with an agency action. This is a valuable method of resolving problems at the local level and eliminating State level hearings where nothing can be done to help the household (such as cases with high medical expenses or shelter costs). If a hearing has been requested but the conference resolves the issue, the hearing request can be withdrawn as stated in 705.10, Denial or Dismissal of Request.
These "optional" conferences need not be as formal as outlined above. The point is to review the case with the client, fully explain the situation and the reason for the action taken, and, if appropriate, obtain a written withdrawal of the hearing request. This can best be done if the conference is held at the agency.
The county may respond to a series of individual requests for hearings by conducting a single group hearing. The county may consolidate only cases in which the sole issue is one of federal law, regulation or policy, and individual issues of fact are not disputed. In all group hearings, the policies governing hearings must be followed. Each individual household will be permitted to present his own case or be represented by legal counsel or other spokesperson.
A request for a hearing is defined as any clear expression, oral or written, that the household wishes to present its case to a higher authority to appeal a decision. A FNS unit member, the authorized representative, or some other person acting on the household’s behalf, such as a legal representative, relative, or friend, may make the request. The right to make such a request shall not be limited or interfered with in any way.
A. If the FNS unit’s reason for requesting a hearing is unclear, the FNS unit should be contacted to clarify its grievance. At this time, the possibility of a local conference can be explored with the household. The clear request is the basis for the "date of request" shown on the request form, DSS-1473.
B. The county DSS should complete the DSS-1473, Request for State Appeal and forward it within two workdays of the request for a hearing to the Chief, Hearings and Appeals Section, NC Department of Health and Human Services, Division of Social Services. If the two-workday time frame is not met, include a written explanation of the delay with the DSS-1473, Request for State Appeal. The time span for timely action given in 705.02, Timely Actions on Hearings, is crucial. Submission of the request may be delayed if a local conference is to be held; however, the conference must be held timely. In such cases, the request must be forwarded within ten working days of the request for the hearing.
C. Distribute copies of the DSS-1473 as indicated on the form.
D. Upon request, provide documents and the specific materials necessary for the FNS unit or its representative to determine whether a hearing should be requested or to prepare for a hearing. Advise the FNS unit of any legal services available that can provide representation at the hearing.
E. The county department must process each request for a hearing under uniform rules of procedure. The uniform rules of procedures are published in the Food and Nutrition Services Hearings Bulletin and should be made available to any interested party.
F. If the individual making the hearing request speaks only a language other than English, the county department is required by Section 140.04, Bilingual Requirements, to provide bilingual staff or interpreters who speak the appropriate language. The county department must ensure that the hearing procedures are verbally explained in that language.
G. The county department must expedite hearing requests from households, such as migrant farmworkers, that plan to move from the county before the hearing decision would normally be reached. Hearing requests from these households will be processed faster than others if necessary to enable them to receive a decision before they leave the county.
A request for a fair hearing must be made within 90 calendar days of the action or loss of benefits the FNS unit wishes to appeal. This includes the denial of a request for restoration of benefits lost more than 90 days but less than a year before the request. In addition, at any time within a certification period, a household may request a fair hearing to dispute its level of benefits.
A request for a fair hearing can be denied or dismissed for the following reasons:
A. The hearing request was not received within the time period specified in 705.09, Time Period for Requesting Hearing.
B. The hearing request is withdrawn in writing by the FNS unit or its representative.
C. The FNS unit or its representative fails, without good cause, to appear at the scheduled hearing.
D. The FNS unit feels "aggrieved" by an action but eligibility or level of benefits is not an issue (that is, participation is not affected). However, do not deny a request for a hearing when the FNS unit is disputing the establishment or amount of an Inadvertent Household Error (IHE) claim or an Administrative Error (AE) claim. Only the amount of an IPV claim may be disputed. This is because IPV claims are established by court action or a separate administrative disqualification hearing procedure. (Establishment of an IPV claim cannot be reversed by a fair hearing.) These situations would be handled through the complaint system rather than the fair hearing system. See Section 125.01, Complaint Procedures.
E. The issue is an Employment Security Commission determination in the area of non-compliance with work registration requirements. These areas are not subject to a fair hearing unless the county department issues a Notice of Adverse Action. See Section 240, Work Registration Requirements.
If the FNS unit requests a fair hearing within the ten-day advance notice period for the Notice of Adverse Action, continue benefits on the basis authorized immediately prior to the Notice of Adverse Action, as long as the certification period is not expired and the FNS unit does not waive continuation of benefits.
A. Unless the hearing request indicates that the household has waived continuation of benefits, the county department must continue the benefits.
B. If a hearing request is made after the expiration of the ten-day advance notice period provided by the Notice of Adverse Action, reduce or terminate benefits as proposed in the notice.
C. If the FNS unit establishes that its failure to make the request within the advance notice period was for good cause, reinstate the benefits to the prior level.
D. When benefits are reduced or terminated due to a mass change, reinstate benefits to the prior level only if the issue is that eligibility or benefits were computed incorrectly or that federal law or policy is being misapplied or misinterpreted.
E. Do not continue benefits at the prior rate when the hearing request is the result of recertification.
F. Do not continue benefits at the prior rate once a certification period ends.
G. Do not end continuation of benefits because a local conference finds in favor of the county when the recipient has not withdrawn his/her request for a State Level Hearing.
If the FNS unit requests a fair hearing regarding an overissuance claim, do not proceed with an allotment reduction; place an “X” in the Appeal Indicator on the Debtor Detail screen in EPICS. Remove the “X” once the hearing is decided, or the hearing is denied or dismissed. While a fair hearing decision is pending an action regarding any action other than one regarding an overissuance claim, do not reduce or terminate continued or reinstated benefits unless:
A. The certification period expires. The FNS unit may reapply and may be determined eligible for a new certification period with a benefit amount as determined by the county department;
B. The Hearing Officer makes a preliminary determination, in writing and at the hearing, that the sole issue is one of federal law, regulation, or policy and that the FNS unit's claim that the county department improperly computed the benefits or misinterpreted or misapplied such law, regulation, or policy is invalid;
C. A change affecting the FNS unit's eligibility or basis of issuance occurs while the hearing decision is pending, and the FNS unit fails to request a hearing after the subsequent Notice of Adverse Action; or
D. A mass change affecting the FNS unit's eligibility or basis of issuance occurs while the hearing decision is pending.
The county must promptly inform the claimant in writing if benefits are reduced or terminated pending a hearing decision.
Upon receipt of a request for a fair hearing, the Hearing Officer appointed by the State Director of Social Services schedules the hearing. The time, date, and place of the hearing will be convenient to the household. At least ten days advance written notice shall be provided to all parties involved to permit adequate preparation of the case. However, the FNS unit may request less advance notice to expedite the scheduling of the hearing. The notice must conform with N.C. General Statute 150A-23 and will:
A. Advise the FNS unit or its representative of the name, address, and telephone number of the person to notify in the event that it is not possible for the FNS unit to attend the scheduled hearing.
B. Specify that the hearing request will be dismissed if the FNS unit or its representative fails to appear for the hearing without good cause.
C. Include the uniform rules of procedure, the Hearings Bulletin, and any other information that would provide the household with an understanding of the proceedings and would contribute to the effective presentation of the household's case.
D. Explain that the household or representative may examine the case file prior to the hearing.
The responsibilities of the county department in preparation for the hearing include the following.
A. Arranging a suitable place for the hearing. Though the hearing will normally be held in the offices of the county department, it may be held in some other mutually acceptable place. The location should not entail any undue travel expense to the appellant. The room should be physically comfortable, afford as much privacy as possible, and be furnished with such equipment as necessary to ensure the efficiency of the proceedings. Any problems and handicaps, such as illness or deafness, will be taken into consideration in making the arrangements. When the appellant's physical and/or mental state would seem to significantly hinder his participation in the hearing or the hearing itself might aggravate his condition, encourage the participation of a representative.
B. Preparing the following information and presenting it to the Hearing Officer at the time of the hearing.
1. Original and two copies of the appeal summary which should be a brief report of facts about the action. Unrelated material should be omitted. The general format may be the same as used for public assistance hearings.
2. Original and two copies of all other supportive material, including copies of the application/affidavit and notices sent to the household.
3. Any other pertinent information helpful in establishing facts. Information presented at the hearing must clearly document the reasons for county action.
The hearing will be attended only by persons directly concerned with the issue and will not be open to the public unless specifically requested by the appellant. The appellant may bring any friends or witnesses, as well as legal counsel at his expense. Persons required to be in attendance are:
A. The appellant and/or his representative;
B. The worker or workers directly involved in the issue; and
C. The worker's supervisor.
The Hearing Officer will:
A. Administer an oath to all participants;
B. Ensure that all relevant issues are considered;
C. Request, receive, and make part of the record all evidence determined necessary to decide the issues being appealed;
D. Regulate the conduct and course of the hearing consistent with the appellant's rights to ensure an orderly hearing;
E. Limit the number of persons in attendance at the hearing if space limitations exist;
F. Order, where relevant and useful, an independent medical assessment or professional evaluation from a source mutually satisfactory to the household and the county department; and
G. Provide a hearing record and recommendation for the decision to the Division Director or Chief Hearing Officer.
The FNS unit may not be familiar with the rules of order, and it may be necessary to make particular efforts to arrive at the facts of the case in a way that makes the FNS unit feel most at ease. The FNS unit or its representative must be given adequate opportunity to:
A. Examine all documents and records to be used at the hearing at a reasonable time before the date of the hearing as well as during the hearing. The contents of the case file, including the application form and documents of verification used by the county department to establish the household's ineligibility or eligibility and allotment, must be made available, provided that confidential information (such as the names of individuals who have disclosed information about the household without its knowledge or the nature and state of pending prosecutions) is protected from release. The county department must provide free copies of the relevant portions of the case file if requested by the household or its representative. Confidential information that is protected from release and other documents or records which the household will not otherwise have an opportunity to contest or challenge can not be presented at the hearing or affect the decision.
B. Present the case itself or have it presented by a legal counsel or other person.
C. Bring witnesses.
D. Advance arguments without undue interference.
E. Question or refute any testimony or evidence, including an opportunity to confront and cross-examine adverse witnesses.
F. Submit evidence to establish all pertinent facts and circumstances in the case.
The county representative has all the same rights as the claimant such as the right to examine documents, bring witnesses, advance arguments, question evidence, and submit evidence.
The Hearing Officer presides and conducts the hearing informally. The recording procedures should be explained so that each person will understand the importance of speaking slowly and distinctly. Following the administering of the oath, the hearing format is as follows.
A. The Hearing Officer explains the following.
1. The report on the hearing, including exhibits, will be presented to the Director of State Division of Social Services after the hearing.
2. The Director of State Division of Social Services will make a decision based solely on the evidence and testimony introduced at the hearing.
3. Tentative and final decision provisions, including notification to the parties involved.
4. The appellant's right to take the case to court for judicial review.
B. A county representative shall read the appeal summary into the record.
C. The Hearing Officer will make a statement of the points at issue.
D. Opportunity is provided the participants for a correction or modification of the statement of the problem. It is the duty and responsibility of the Hearing Officer to assist both the household and the county department in making a full statement of the case so that the relevant facts are brought out to develop the points at issue. Each person present is given an opportunity to speak. Any oral testimony or written documents, which in the judgement of the Hearing Officer appear to be reasonably related to the issue involved and to be of value in determining the fact at issue, are received. The household and the county have the opportunity to offer rebuttal.
E. Technical rules of evidence do not apply at the hearing.
The verbatim transcript or recording of testimony and exhibits or an official report containing the substance of what transpired at the hearing, all papers and requests filed in the proceeding, oral or written arguments received after the tentative decision, and the final decision will constitute the hearing record.
A. This record shall be retained in accordance with Section 135, Retention of Records. This record shall also be available to the household or its representative, at any reasonable time, for copying and inspection.
B. Confidential or other information which the FNS unit or representative does not have an opportunity to hear, see, and respond to will not be introduced at the hearing nor shall it become a part of the hearing record.
If the hearing involves medical issues, such as those concerning a diagnosis or an examining physician's report, the Hearing Officer may rule that a medical assessment other than that of the person making the original determination will be obtained at combined federal-State expense from a source satisfactory to both the FNS unit and the county and made a part of the hearing record. (This would be a county expense.) Federal and State reimbursement is available and is included in allowable administrative expenses claimed on the DSS-1571.
Hearing decisions are rendered by the State Director of Social Services. This responsibility may be delegated to the Chief Hearing Officer. Decisions are rendered in the name of the State and are binding on the county departments. The hearing decision will take into consideration all issues questioned at the hearing and will be factually based on the hearing record. Decisions may not run contrary to federal law, regulation, or policy.
The decision will state the issue, the principal facts presented at the hearing that relate to the decision, pertinent provisions of the manuals, and the reasoning that led to the decision.
A decision will be prepared in tentative form and shall be sent to the household and the county department for review. The decision will become final unless either party requests within ten calendar days of the date of the tentative decision to present oral or written arguments. Such arguments must be presented within ten calendar days of the date a request to present arguments is made. If oral or written arguments are not requested within ten calendar days, the decision becomes final. (There is no further notification of the hearing decision.) Send a DSS-8658 Post Hearing Repayment Notice (Figure 705-1) to tell the household they still owe the claim if the ruling was in favor of the county.
The appellant and the county department will be notified of the tentative decision through the DSS-1893, Notice of Decision.
If oral or written arguments have been presented following the tentative decision, the household and the county department shall be notified of the final decision through the DSS-1894, Notice of Final Decision. The decision will include findings of fact in accordance with N.C. General Statute 150A-36. A copy of the decision will be given each party personally or by certified mail and a copy furnished to his attorney of record. Send a DSS-8658 Post Hearing Repayment Notice (Figure 705-1) to tell the household they still owe the claim if the ruling was in favor of the county.
Regardless of use of a tentative decision, the timeliness standards in 705.02, Timely Action on Hearings, continue to apply.
(Reserved)
Further appeal by the client or the county must be made by judicial review pursuant to N.C. General Statute 108-109.
All hearing records and decisions will be available for public inspection and copying, subject to the disclosure safeguards provided in Section 130.01, Disclosure of Information. (The name and/or other identifying information must be blanked out or otherwise restricted from release.)
The county department is responsible for ensuring that all final hearing decisions are reflected in the FNS unit’s allotment within the time limits specified in 705.02, Timely Action on Hearings.
When the decision finds that a household has been improperly denied program benefits or has been issued a lesser allotment than was due, issue supplemental benefits to the FNS unit in accordance with Section 905, Restoration of Lost Benefits.
Any unpaid balance on an IPV, IHE, or AE claim shall be applied against the amount to be restored. The Notice of Final Decision need not direct the county department to restore the lost benefits.
When the Hearing Officer upholds the county department's action, a claim against the FNS unit for any overissuances shall be prepared in accordance with Section 800, Claims.
A Hearing Officer can decide additional verification is necessary in order to determine eligibility, and remand the hearing back to the county. Request the additional verification from the client using the DSS-8650.
A. Make a new eligibility decision when the client provides the verification. Notify the client of this new decision.
B. Take no additional action if the client does not provide the requested verification and the case was closed prior to the hearing.
C. Close the case if the client does not provide the requested verification and the client was receiving continued benefits.
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For questions or clarification on any of the policy contained in these manuals, please contact your local county office. |
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