Revision 23-1; Effective July 31, 2023

Fair hearing activities are based on federal and state statutes, rules and regulations. Statutes provide an outline of all requirements, while the rules and regulations provide more detail on how to apply the statute.

1110 Statutes and Regulations

Revision 23-1; Effective July 31, 2023

1111 Federal Statutes and Regulations

Revision 23-1; Effective July 31, 2023

• Section 1396a of the Social Security Code relates to Medicaid requirements in the State Plan.
• Title 7, USC Section 2020(e)(10) relates to Supplemental Nutrition Assistance Program (SNAP) requirements.
• Regulations concerning fair hearings for Temporary Assistance for Needy Families (TANF) are in 45 CFR Section 205.10.
• Regulations concerning fair hearings for Medicaid are in 42 CFR Section 431.205.
• Regulations concerning fair hearings for SNAP assistance are in 7 CFR Section 273.15.
• Regulations concerning fair hearings for skilled nursing facilities, nursing facilities, and PASARR are in 42 CFR Section 483.204.

1112 Texas Statutes and Regulations

Revision 23-1; Effective July 31, 2023

1112.1 Texas Human Resources Code

Revision 23-1; Effective July 31, 2023

• Section 31.034 of the Texas Human Resources Code provides the right to appeal to an applicant for or recipient of financial assistance in TANF.
• Section 32.035 of the Texas Human Resources Code makes the provisions of Section 31.034 applicable to applicants for medical assistance. 

1112.2 Texas Administrative Code (TAC)

Revision 23-1; Effective July 31, 2023

Pursuant to 1 TAC Section 357.3, the Health and Human Services Commission (HHSC) is authorized by law to adopt and implement rules to administer the programs it oversees. These uniform fair hearing rules apply to the TANF program, SNAP (formerly the Food Stamp Program), all Medicaid-funded services and all other agency programs that are required by state or federal law or rules to provide the right to a fair hearing. HHSC delegates to the Appeals Division the authority to appoint hearings officers and to conduct fair hearings.

HHSC Appeals Division is responsible for publishing fair hearing rules, processing appeals, conducting fair hearings and issuing decisions.

1120 Reserved for Future Use

Revision 23-1; Effective July 31, 2023

1130 Burden of Proof - 1 TAC Section 357.9

Revision 23-1; Effective July 31, 2023

The burden of proof in a fair hearing regarding a specific issue is proof by a preponderance of the evidence. The party that bears the burden of proof meets the burden if the stronger evidence, overall, favors that party, as determined by the hearings officer. Depending on the type of hearing, the following apply:

• The agency or its designee bears the burden of proof in benefit or service reduction, suspension, termination, or denial hearings.
• The nursing facility bears the burden of proof in transfer and discharge hearings.

1140 Private (Ex Parte) Communication - 1 TAC Section 357.5

Revision 23-1; Effective July 31, 2023

The hearings officer is prohibited from engaging in private (ex parte) communication, whether oral or written, with a party or the party's representative or witness relating to matters to be adjudicated in the hearing, unless both parties are notified. 

An agency representative, the appellant or the appellant's representative may contact the hearings officer to determine if a particular case has been decided or if an appeal has been received. If the contact is limited to this type of question, it is not considered ex parte communication. This is procedural communication, as it is strictly limited to uncontested procedural issues.

Additional information submitted by either party after or outside of the hearing is not considered ex parte communication if it is shared with the other party. A hearings officer must distinguish between procedural and ex parte communication.

1150 Judicial Notice

Revision 23-1; Effective July 31, 2023

Judicial notice, for the purpose of fair and fraud hearings, is the authority of a hearings officer to introduce known policy, rules, or regulations into the hearing record. 

Judicial notice is taken by the hearings officer, as a last resort, only when the hearings officer is aware of a policy, rule or regulation which:

• when not applied by the agency, will have an adverse effect on the appellant; or
• is needed to fully develop the record and write the hearing decision; and
• has not been provided or introduced by any party of the hearing.

1160 Obtaining a Legal Opinion or Clarification

Revision 23-1; Effective July 31, 2023

When necessary, a hearings officer may request legal clarification or opinion on the relevance or significance of policy, legal documents or other evidence being considered in the hearing, including allegations that agency policy conflicts with federal rule or statute.

The legal clarification request and response must be shared with all parties once the response is received. After the response is received, each side must have an opportunity to provide comment or rebuttal of the opinion; if necessary, the hearings officer may ask for additional clarification of issues raised during the rebuttal. The hearings officer must reconvene the hearing to permit discussion of the clarification by all parties. Non-case specific legal opinions or clarifications are not shared with the parties, and it is not necessary to reconvene the hearing.

1170 Requesting a Case File - 1 TAC Section 357.13(b)(7)(A)

Revision 23-1; Effective July 31, 2023

Appellants have a right to view their case files to prepare for the hearing. Form H4805, Fair Hearing Procedures, advises the appellant of this right and to contact the hearings officer if the appellant wishes to view the entire case file, not just the documents provided for the hearing. Form H4805 is included in the hearing packet mailed to the appellant.

Requests for case files must include the appeal ID, appellant’s name, and the type of program. If requested by an authorized representative who is not included in the record at the time of the request, the authorization from the requestor to represent the appellant must be included. Once a request is received, FFH will route the request to the corresponding party for completion.

1180 Records and Confidential Information

Revision 23-1; Effective July 31, 2023

1181 Privileges - 1 TAC Section 357.25(e)

Revision 23-1; Effective July 31, 2023

No party to a fair hearing is required to disclose information that is deemed privileged by law. This includes communications between a lawyer and a client, a husband and wife, and a clergyperson and a person seeking spiritual advice. Likewise, the name of an informant or other information protected from disclosure by federal or state substantive law may not be shared with an appellant.

1182 Public Access to Decisions - 1 TAC Section 357.25(c)

Revision 23-1; Effective July 31, 2023

1182.1 Confidential Information

Revision 23-1; Effective July 31, 2023

• HHSC Appeals Division records and decisions are available for public inspection and copying but are subject to federal and state rules and statutes relating to confidentiality.
• Names, addresses and other identifying information about the household, medical information and the status of pending criminal prosecutions are confidential.
• Fair and Fraud Hearings decisions can be found online, here.

1182.2 Disclosure of Hearings Recordings and Records

Revision 23-1; Effective July 31, 2023

• An appellant or representative may record the hearing, either by audio or visual means, or request a copy of the hearing recording, at no cost, from the hearings officer.
• All other public access to hearings records and decisions is subject to the Texas Public Information Act.
• The agency will redact all confidential information from the hearings decision and make the decision available to the public, without cost, within 30 calendar days of the date of the hearing decision in all acute care appeals for clients less than 21 years old.
• Fair and Fraud Hearings decisions can be found online, here.

1183 Official Record - 1 TAC Section 357.25(a)

Revision 23-1; Effective July 31, 2023

The official record of the hearing includes the fair hearing request summary, correspondence, including notices of hearing (initial, reschedule, and reconvene), reschedule requests, requests for the record to remain open, requests to reopen the record, statements of good cause, requests for additional information, withdrawal requests, letters of representation, exhibits admitted by the hearings officer, the recording of the hearing, any briefs or memoranda filed in connection with the hearing, the hearings officer’s decision and any correspondence concerning administrative review or procedural review.

1184 Record Retention - 1 TAC Section 357.25(b)

Revision 23-1; Effective July 31, 2023

The official record of all hearings is retained by the HHSC Appeals Division according to the HHSC Records/Retention Schedule.

1185 Prohibition of Use of Information Regarding Alien Status

Revision 23-1; Effective July 31, 2023

HHSC shall not disclose any of the information about a client to the U.S. Citizenship and Immigration Services or any government agency, except as required by law.

1190 Decision Reviews

Revision 23-1; Effective July 31, 2023

Hearings managers have the responsibility and duty to ensure correct decisions are issued to the extent possible. Hearings managers conduct quarterly readings of decisions issued by each hearings officer. 

The senior counsel, hearings director or hearings manager may designate mandatory readings of specific types of decisions prior to issuance.

In critical or emergency situations, including when the hearings officer is unavailable, the hearings manager has the authority to act on behalf of staff and issue or re-issue decisions and orders.