2202 - INITIAL HEARINGS

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					HEARINGS                                                              INITIAL HEARINGS


                       APPENDIX B - INITIAL HEARINGS

 REQUIREMENT          An AU has the right to request a hearing if it believes that the
                      decisions regarding eligibility for and/or level of benefits are not
                      correct and/or fair.
 BASIC                A request for an initial hearing is made either at the local DFCS
 CONSIDERATION        office or the Department of Human Services (DHS), Office of
                      General Counsel (OGC). County offices must explain to the AU the
                      procedures and methods for requesting a hearing.

                      An AU must request a hearing within 90 days from the date of
                      notification that gives the adverse decision and in which the AU has
                      expressed dissatisfaction. An AU may request a hearing to dispute
                      the current level of benefits at any time within the period of
                      eligibility.

                      NOTE: All requests for hearings are forwarded to the Office of
                      General Counsel (OGC), even if requested untimely. The OGC
                      reviews the hearing requests and makes recommendations to OSAH
                      to either accept or reject the request.

                      If the hearing request is made to the county department, it is
                      forwarded to the OGC within three working days.

                      If the hearing request is received directly by the OGC, a copy of the
                      request is forwarded to the county DFCS office. If necessary, the
                      county office will assist the AU in submitting and processing the
                      hearing request.

                      Following the receipt of a hearing request, OSAH calls the county
                      office to set up a telephone or office hearing and sets a time for the
                      hearing. The county office makes the arrangements to hold the
                      hearing.

                      Hearings are conducted in the county office or another designated
                      location. For those counties with speaker phone capability, the
                      hearing may be conducted by telephone for OSAH with the parties
                      being present at the local hearing site. At the request of the AU,
                      representative or agency, a face-to-face hearing is conducted.

                      Hearing requests from AUs such as seasonal farm workers who plan
                      to move out of state before the hearing decision is reached, are
                      expedited so that they can receive a decision and restoration of
                      benefits if applicable, before they move.




VOLUME III - FS MT-33 - 06/12                                APPENDIX B PAGE B-6
HEARINGS                                                               INITIAL HEARINGS

 BASIC
 CONSIDERATION
 (cont.)

      Expedited Food   AUs contesting a denial of expedited services are entitled to a
      Stamp Hearings   conference with the local DFCS office within two working days
                       from the date the hearing request is filed. The AU may decline
                       attending the conference or request a later date for the conference.
        AU's Hearing   The AU may not be familiar with the rules of order and it may be
              Rights   necessary to make particular efforts to arrive at the facts of the case
                       in a way that makes the AU feel most at ease. The AU or its
                       representative has the following rights:

                          To 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 verifications used by the
                           State agency to establish the AU's ineligibility or eligibility and
                           allotment shall be made available, provided that confidential
                           information, such as the names of individuals who have
                           disclosed information about the AU without its knowledge or the
                           nature or status of pending criminal prosecutions, is protected
                           from release. If requested by the AU or its representative, the
                           State agency shall provide a free copy of the portions of the case
                           file that are relevant to the hearing. Confidential information
                           that is protected from release and other documents or records
                           which the AU will not otherwise have an opportunity to contest
                           or challenge shall not be introduced at the hearing or affect the
                           hearing official's decision.

                          To present the case or have it presented by a legal counsel or
                           other person.

                          To bring and/or subpoena witnesses.

                          To advance arguments without undue interference.

                          To question or refute any testimony or evidence, including an
                           opportunity to confront and cross-examine adverse witnesses.

                          To submit evidence to establish all pertinent facts and
                           circumstances in the case.

                          To request assistance from the agency for transportation to the
                           hearing.



VOLUME III - FS MT-33 - 06/12                                 APPENDIX B PAGE B-7
HEARINGS                                                                INITIAL HEARINGS

 BASIC
 CONSIDERATION
 (cont.)

    Agency's Hearing    The agency has responsibility to do the following:
     Responsibilities
                           To ensure that its personnel with direct knowledge of the facts in
                            dispute are present to testify.

                           To ensure that all relevant agency records and legible copies are
                            available as evidence.

                           To ensure that non-agency witnesses and records are present
                            either voluntarily or by subpoena.

                        NOTE: Confidential information which is protected from release
                        and other documents or records which the AU may not contest or
                        challenge cannot be presented at the hearing.

                        The initial decision is issued within 60 days from the date the
                        request for a hearing is received by the agency, unless there is a
                        postponement. Act immediately on receipt of the initial decision
                        whether favorable or unfavorable to the AU.


    Agency's Hearing    The agency has the right to do the following:
              Rights
                           To bring and/or subpoena witnesses.

                           To submit evidence to establish all pertinent facts and
                            circumstances in the case.

                           To advance arguments without undue interference.

                           To question or refute any testimony or evidence, including an
                            opportunity to confront and cross-examine adverse witnesses.




VOLUME III - FS MT-33 - 06/12                                 APPENDIX B PAGE B-8
HEARINGS                                                                INITIAL HEARINGS

 PROCEDURES
 (cont.)

        Processing a    Follow the steps below when an AU or its representative requests an
     Hearing Request    initial hearing.

               Step 1   Review the record to determine the following:

                           Was the correct action taken? If not, contact the AU and
                            determine if an adjustment can be made.
                           Is the AU eligible on all points of eligibility other than the one at
                            issue?
                           Is there enough information in the record to determine the
                            correct amount of assistance? If not, obtain any needed
                            verification either directly or by requesting that OSAH subpoena
                            needed documents and/or witnesses.

                        Discuss the complaint with the AU or the representative prior to
                        submitting the request to ensure that a hearing is necessary.

               Step 2   If a mutually satisfactory decision can be reached, the AU may wish
                        to withdraw the request for a hearing. Make the changes agreed
                        upon in the discussion (Step 1) whether or not the AU withdraws the
                        hearing request.

               Step 3   Inform the AU that timeliness in filing the hearing affects
                        continuation or reinstatement of benefits and possible denial of the
                        hearing request.

               Step 4   Submit the following original documents to Office of General
                        Counsel (OGC), Appeal Reviewer, within three working days:

                           Form 118, Request for Hearing, or any written communication
                            presented by the AU.

                           OSAH Form 1 - Food Stamps.

                           application related to the matters in dispute.

                           notice to client of the action appealed.

                           any and all records verifying facts, including records of
                            telephone conversations, interviews, etc., which were the basis
                            for the action taken.

                           any other materials which were made a part of the case file in the
                            normal course of business and on which the agency relied for the
                            action taken.

VOLUME III - FS MT-33 - 06/12                                  APPENDIX B PAGE B-9
HEARINGS                                                              INITIAL HEARINGS


 PROCEDURES               subpoenas needed for individuals and/or documents prepared for
 (cont.)                   the Administrative Law Judge’s signature. If subpoenas are
           Step 4          needed for documents, provide document custodians address and
           (cont.)         type of documents.

                          The request for a subpoena form is completed setting forth the
                          relevance of the testimony/documents being sought. This form is
                          attached to the subpoena sent to OSAH. Copies of the request
                          form and the subpoena are provided to all parties involved in the
                          hearing. After signing by the ALJ, the subpoena is returned to
                          DFCS for personal service on the witness or mailing to the
                          witness via certified mail.
                         copy of regulation(s) relied upon in reaching the action taken.

                        NOTE: Copy documents with original signatures and place copies
                        in case records.

                        The ALJ is specifically prohibited by state law from providing legal
                        advice to any party, including the State agency. This means that
                        OSAH cannot assist the agency in determining who should be
                        present as witnesses at hearings and what evidence, including
                        documents, is necessary to explain and establish the case.

               Step 5   Determine if the AU is entitled to continued or reinstated benefits.
                        Refer to Appendix B, Chart 1, in this section.

               Step 6   Inform the AU that a request for continuation or reinstatement of
                        benefits pending a hearing decision requires repayment of those
                        benefits if the decision is adverse to the AU.

                        Inform the AU that a waiver of continuation or reinstatement of
                        benefits pending a hearing decision requires a corrective or
                        restoration to the AU if the decision is favorable to the AU.

                        NOTE: If the hearing request does not indicate that the AU has
                        waived continuation of benefits, assume continuation is desired.

               Step 7   Allow the AU to examine all documents and records that will be
                        used in the hearing. Allow the AU’s representative to examine these
                        documents, if the A/R signs an authorization to release information.




VOLUME III - FS MT-33 - 06/12                                 APPENDIX B PAGE B-10
HEARINGS                                                              INITIAL HEARINGS

 PROCEDURES
 (cont.)

               Step 8   Report any changes in the circumstances related to the hearing,
                        including address changes, to OGC and OSAH.

               Step 9   Forward any subsequent documents received concerning the hearing
                        to OGC.

                        NOTE: If the AU has a legal representative, all communication
                        with the A/R is made through that person.


      Implementing a    Refer to Page 3 in this section for steps to withdraw a hearing
     Hearing Decision   request.

                        Follow the steps below to implement the hearing decision.

               Step 1   Notify OGC in writing within five working days from the receipt of
                        the decision that it has been received and will be implemented.

               Step 2   Determine whether the decision is in the AU or the agency’s favor.
                        Use Appendix B, Chart B1, Adjusting Benefits After An Initial
                        Hearing or Final Appeal, to determine the required action.

               Step 3   Adjust the AUs ongoing benefits to the proper level, if necessary.

               Step 4   Issue restorations as authorized by the ALJ or Appeal Reviewer.

                        NOTE: Authorize restorations only for those months in which an
                        agency error occurred.

               Step 5   Notify the AU of the action taken. Document on the notification
                        each month’s circumstance and eligibility status and that the action
                        is the result of an appeal. Mark through the appeals information.

                        The hearing decision serves as an adequate notice of the AU’s
                        appeal rights.

               Step 6   Forward written notification of the AU’s entitlement to the new
                        county if the AU has moved and is entitled to restored benefits.




VOLUME III - FS MT-33 - 06/12                                 APPENDIX B PAGE B-11
HEARINGS                                                                    INITIAL HEARINGS


PROCEDURES
(cont.)

     CHART B2 - CONTINUATION OF BENEFITS PENDING INITIAL DECISION
   IF THE AU REQUESTS A HEARING                                         THEN
 within 14 days of the date of the timely notice   continue benefits at the level prior to the date
 and chooses to continue benefits or fails to      of the timely notice.
 waive the right to continued benefits on Form
 118

 within 14 days of the date of the adequate        Re-instate benefits at the level prior to the
 notice and chooses to continue benefits           date of the adequate notice.

                                                   NOTE: Re-instate Food Stamp benefits
                                                   within five working days of the request for a
                                                   hearing.

 and claims good cause for not appealing           Re-instate benefits only after approval by the
 during the 14 day timely notice period            Appeal Reviewer.

 and the period of eligibility ends                allow the AU to reapply and determine
                                                   eligibility for a new period of eligibility.
 and the Appeal Reviewer determines that the       reduce or terminate continued benefits
 issue being appealed is federal law, regulation   immediately pending the hearing decision.
 or policy, and not an error by the agency         Provide no additional timely notice period.
 and a change affecting eligibility occurs while   change the benefits appropriately unless the
 the hearing or decision is pending                AU requests a hearing on the subsequent
                                                   change. Notify the ALJ.
 and a change results in benefits not being        adjust the benefits without waiting for the
 reduced to the amount in the original notice      hearing decision.
 and a mass change is required while the           change the benefits appropriately and notify
 hearing or decision is pending                    the ALJ.
                                                   Continuation or re-instatement of benefits are
                                                   appropriate only if the Appeal Reviewer
                                                   determines that the mass change is incorrectly
                                                   applied.
 on an IPV disqualification                        do not re-instate benefits at the level prior to
                                                   the disqualification.

                                                   NOTE: Pend the outstanding claim and
                                                   reinstate benefits to the level prior to
                                                   recoupment, at the AU’s request.



VOLUME III - FS MT-33 - 06/12                                      APPENDIX B PAGE B-12

				
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