Revision 23-1; Effective July 31, 2023

1610 Pre-hearing Conference – General

Revision 23-1; Effective July 31, 2023

The hearings officer may schedule a pre-hearing conference if it is necessary to resolve issues of procedure, jurisdiction or representation, or if it will expedite and simplify the hearing. 

A pre-hearing conference is required on overpayment claims appeals filed after 90 days to determine jurisdictional issues or if there was good cause for requesting the hearing past the filing time frame. The hearings officer will schedule a pre-hearing conference to review documents supporting the claim that the repayment is court-ordered. 

The hearings officer does not have jurisdiction when the repayment of an overpayment is court-ordered.

It is not necessary to conduct a pre-hearing conference to determine good cause. However, if a pre-hearing conference is held to determine good cause, it must be recorded and all participants who will testify must be placed under oath. Attorneys acting in a non-legal capacity should be placed under oath when testifying. Attorneys acting in a legal capacity are not sworn in.

1620 Special Hearing Situations

Revision 23-1; Effective July 31, 2023

1621 Hearings for Programs with Program Cost Limits

Revision 23-1; Effective July 31, 2023

The Centers for Medicare and Medicaid (CMS) is the federal agency with oversight over Texas Medicaid nursing facilities, intermediate care facilities for individuals with intellectual disabilities (ICF/IID), and the waivers associated with them. The following programs may have cost limits:  STAR+PLUS Waiver, Medically Dependent Children Program (MDCP), Community Living Assistance and Support Services (CLASS), Deaf Blind with Multiple Disabilities (DBMD), Home and Community-based Services (HCS), Texas Home Living (TxHmL).

If the issue on appeal is a request for an increase in services or benefits, it is prudent for the hearings officer to ask the agency representative how the increase would impact the cost limit. If it is unclear how the decision might impact the individual cost limit, the hearings officer should recess the hearing and instruct the agency to provide the necessary information. 

A hearings officer does not have the authority to hear appeals related to General Revenue.

1621.1 Exceptional Circumstances

Revision 23-1; Effective July 31, 2023

If a prior authorization request for an item of medical equipment is denied because the item is not a normally covered benefit of Texas Medicaid, the exceptional circumstances policy allows a beneficiary to request that their DME supplier re-submit the request and invoke the exceptional circumstances exception.

If exceptional circumstances exist and were not explored by the agency prior to the hearing, the hearings officer must recess the hearing to allow the agency at least 10 days to conduct a review based on exceptional circumstances. The agency’s findings must be shared with the hearings officer and the appellant. Upon reconvening the hearing, the agency should present its findings and the appellant must have an opportunity to ask questions and respond to the agency’s findings.

1622 Hearings Concerning Overpayments

Revision 23-1; Effective July 31, 2023

A SNAP or TANF client may receive an overpayment as the result of client error, agency error, or an intentional program violation. If an appellant is notified of an overpayment, they may appeal either the existence of or the amount of the overpayment.

Once a claim has been established clients may receive collection notices or have an income source, such as an IRS tax refund, garnished. These collection efforts are not subject to appeal. The appellant may contact the IRS directly regarding a garnished tax refund. The appellant must appeal the notification of an overpayment claim rather than a collection effort. However, an appellant may allege that they did not become aware of the overpayment claim until a collection effort occurred. The hearings officer should consider this when determining if the appellant had good cause for appealing more than 90 days after the notification of the overpayment claim. A pre-hearing conference is required on overpayment claims appeals filed after 90 days to determine jurisdictional issues.

If a claim is the result of an intentional program violation, an administrative disqualification hearing must be held either before or at the same time as the overpayment hearing as described in Section 4246, Consolidation of Administrative Disqualification Hearings and Fair Hearings. The administrative disqualification decision must be rendered before an overpayment decision can be rendered.

Compromising a claim means that the agency waives part or all of an overpayment claim because of the client's inability to repay the claim. Although HHSC has discretionary authority to compromise and settle SNAP over issuance claims, a hearings officer has no authority to determine whether HHSC should compromise a claim or the amount for which a claim should be settled. A client does not have a right to appeal an HHSC decision whether to compromise an over issuance or the settlement amount.

1630 Discovery, Evidence and Exhibits

Revision 23-1; Effective July 31, 2023

1631 Discovery - 1 TAC Section 357.13(b)(7)

Revision 23-1; Effective July 31, 2023

All parties in the hearing have the right to examine the documents, before the hearing, that will be considered at the hearing and used to make a decision.

Before the hearing, the agency representative sends copies of all documents to be used in the hearing to the hearings officer and the appellant. The packet includes, but is not limited to:

• the agency action notice that prompted the appeal;
• application form and worksheets relevant to the appealed action;
• verifications used to make the decision that is being appealed;
• forms, notices and other correspondence sent to and received from the client concerning the appealed action;
• assistance authorization documents;
• all other materials relating to the appealed action; and
• appropriate policy on which the agency is relying.

If the appellant or the appellant’s representative submits documents to be considered at the hearing, the hearings officer will share them with the agency representative before the hearing. The hearings officer ensures that all evidence admitted onto the record has been uploaded to TIERS.

1632 Written Interrogatories - 1 TAC Section 357.13(c)

Revision 23-1; Effective July 31, 2023

An appellant or an appellant's representative or legal counsel may send written interrogatories. 

The written interrogatories must:

• be clear and concise;
• contain no more than 30 questions; and
• be submitted no less than 20 business days before the hearing.

If a party offers the interrogatories at the hearing, they may be admitted as evidence. The hearings officer will determine if they are relevant to the issue on appeal and will be given the appropriate evidentiary weight during the decision writing process.

The hearings officer does not have a role in the interrogatory process except in the hearing itself.

The hearings officer does not have the authority to compel either party to respond to interrogatories.

1633 Evidence - 1 TAC Section 357.5

Revision 23-1; Effective July 31, 2023

The hearings officer is not required to follow the Texas Rules of Evidence or the Texas Rules of Civil Procedure.

Evidence includes any relevant documents or testimony provided by the appellant, the appellant's representative, the appellant’s witness, the agency representative or the agency witness.

Hearsay evidence may be considered by the hearings officer and given the appropriate weight. Hearsay evidence is a statement made by a third party and repeated by one of the hearing participants during the hearing.

Note: When both the appellant and the agency have an attorney, the attorneys are required to share their evidence with each other, the agency representative and the hearings officer as soon as possible. It is highly recommended that evidence be shared at least 20 days before the hearing appointment date. Rebuttals or responses to such submittals may be submitted up until the 10th day before the hearing appointment date. Failure to share evidence may be grounds for a postponement at the request of the side not notified.

The hearings officer ensures the appellant has an opportunity to review any evidence to be used in the hearing before the hearing. In the case of an appeal involving a secondary agency, such as the Texas Workforce Commission, the secondary agency representative sends the hearings officer and appellant a copy of the secondary agency’s case evidence.

It is not appropriate to allow a party or witness to talk about a document that has not been offered into the evidence.

If the appellant has not received the evidence, the appellant should be given the option of proceeding with the hearing without the evidence or rescheduling the hearing in order to receive the evidence.

If no evidence is offered into the record at the hearing or provided to either the hearings officer or the appellant before the hearing, the hearings officer should inform the appellant of their rights when the agency fails to provide the exhibits or documents in advance.

All exhibits admitted by the hearings officer are part of the record, and the hearings officer must ensure that each exhibit is properly labeled and clearly addressed on the record. An exhibit is not admitted into evidence until the hearings officer states as such.

1633.1 Exhibits Admitted

Revision 23-1; Effective July 31, 2023

For an exhibit to be admitted into evidence by the hearings officer, several activities must occur. First, the party must offer the exhibit into evidence. This may be accomplished by the party clearly stating they would like to offer the document as an exhibit. It also may be accomplished by the hearings officer asking the party if they want a particular document to be considered by the hearings officer.

After an exhibit is offered, the hearings officer must decide either to admit the exhibit or not. The hearings officer asks if there are any objections to the exhibit being admitted. If there are no objections the hearings officer admits the exhibit.

The agency representative may offer the full evidence packet as an exhibit. It is permissible for a hearings officer to admit the full packet as one exhibit. If multiple documents are submitted as one exhibit, the pages should be numbered to allow the documents to be identified as they are discussed.

1633.2 Handling Objections

Revision 23-1; Effective July 31, 2023

The formal rules of evidence do not apply to HHSC fair hearings. Most exhibits offered will be admitted, even when objections are raised.

When a document is offered as an exhibit and there is an objection to its admission, the hearings officer should clarify the basis for the objection to the document.

The hearings officer may state, "I've noted your objection. I'll give the appropriate weight to this document when it is time to consider it, but I'll go ahead and admit it."

If a hearings officer sustains the objection and refuses to admit a document for any reason, they should state the reason they are not admitting the document into evidence.

1633.3 Exhibits Not Admitted

Revision 23-1; Effective July 31, 2023

If a party offers an exhibit that the hearings officer determines will not be admitted because it is not relevant to an issue on appeal, the hearings officer states this on the record. 

If a party submits an exhibit but does not offer it, it should be labeled in the decision as “Omitted” or “Not Admitted.”

1633.4 Labeling Exhibits

Revision 23-1; Effective July 31, 2023

There is no right or wrong way to label exhibits. The hearings officer must ensure that all exhibits are clearly labeled if they are admitted on the record.

1634 Requesting Additional Documents

Revision 23-1; Effective July 31, 2023

The hearings officer is responsible for appropriately developing the hearing record and may request additional documentation when further clarification is needed; however, the hearings officer does not have subpoena authority. The hearings officer is responsible for appropriately developing the hearing record and may request additional documentation when further clarification is needed.

If additional documents are requested the hearings officer may leave the record open. Documents are shared with all parties. Each party must be given an appropriate opportunity to review a document and evidence must be admitted and discussed on the record.