Revision 10-1; Effective January 15, 2010

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 Federal Statutes and Regulations

Revision 10-1; Effective January 15, 2010

• §1396a of the Social Security Code relates to Medicaid requirements in the State Plan.
• Title 7, USCA §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 §205.10.
• Regulations concerning fair hearings for Medicaid are in 42 CFR §431.205.
• Regulations concerning fair hearings for SNAP assistance are in 7 CFR §273.15.

1120 Texas Laws

Revision 10-1; Effective January 15, 2010

 

1121 Financial, Medical and Social Service Assistance

Revision 10-1; Effective January 15, 2010

• §31.034 of the Texas Human Resources Code provides the right to appeal to an applicant for or recipient of financial assistance in TANF.
• §32.035 of the Texas Human Resources Code makes the provisions of §31.034 applicable to applicants for medical assistance.
• §12.001 of the Texas Human Resources Code prohibits a person who is not licensed to practice law in Texas from charging a fee for representing an applicant or recipient in procuring services.

1130 Texas Rule and Regulation Authority

Revision 10-1; Effective January 15, 2010

 

1131 Authority and the Right to Appeal — 1 Texas Administrative Code (TAC) §357.3(a)(1)

Revision 11-4; Effective June 1, 2011

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 hear fair hearings.

HHSC Appeals Division is responsible for publishing fair hearing rules; processing fair hearing appeal requests; conducting fair hearings and issuing decisions.

1140 Definitions — 1 TAC §357.1

Revision 11-4; Effective June 1, 2011

The following words and phrases, when used in this handbook, have the following meanings unless the context clearly indicates otherwise.

• Across the Board Reduction of Services – Benefits may be terminated or reduced as the result of a change in Federal or State regulations adversely affecting some or all recipients.
• Action Effective Date – The date the agency action becomes effective.
• Adequate Notice – Notice in accordance with applicable law, rules and regulations of the programs.
• Agency – Any one of the agencies listed under the Health and Human Services (HHS) agencies.
• Agency Action – The action taken by the agency on an applicant or recipient's request for services.
• Agency Representative – An individual from an agency or its designee who is authorized to represent the agency or its designee in a fair hearing.
• Appeal – A request for a review of an agency action or failure to act that may result in a fair hearing.
• Appellant – A client who requests a fair hearing.
• Authorized Representative – A person designated by the appellant in writing or designated by statute, regulation or rule or named by the appellant on the record who may act on behalf of the appellant at the fair hearing.
• Benefit – A service administered or assistance provided by the agencies or their designees, including determining eligibility for services in the SNAP, TANF and Medicaid-funded programs, and other agency programs in which state or federal law or rules provide a client the right to a fair hearing.
• CRU – Centralized Representation Unit within the HHSC Office of Eligibility Services processes appeal requests, appears at hearings, and implements hearing decisions.
• Certified Spanish/English Interpreter – An interpreter who is certified by one of the following entities:
  • American Translators Association;
  • Federally Certified Court Interpreter through the Federal Court Interpreter Certification Examination;
  • Interpreter Certification offered through a four-year college or university;
  • State Certification Programs;
  • U.S. Department of State (Escort, Seminar or Conference level); or
  • Any other nationally recognized certification program.
• CFR – Code of Federal Regulations.
• Client – A person who applies for or receives benefits from one of the HHS agencies.
• Date of Appeal Request – The date on which the appellant or the appellant's authorized representative clearly expresses, in writing or orally as required, a desire to appeal.
• Date of Decision – The date of the hearings officer's decision, as noted on the decision document.
• Date of Notice of Agency Action – The date on the written notice informing the client of the agency action.
• Day – Calendar day, unless otherwise specified.
• Designee – A contractor, employee or other agent designated to act for an agency.
• Fair Hearing – An informal proceeding held before an impartial HHSC hearings officer in which a client appeals an agency action. These hearings are not open to the public.
• Good Cause – The failure to appear for a hearing as a result of circumstances the person could not control.
• Health and Human Services (HHS) Agencies:
  • Health and Human Services Commission (HHSC);
  • Department of Aging and Disability Services (DADS);
  • Department of Assistive and Rehabilitative Services (DARS);
  • Department of Family and Protective Services (DFPS);
  • Department of State Health Services (DSHS); and
  • A reference to an agency includes a designee.
• Health Plan – Includes managed care organizations (MCOs) and primary care case management (PCCM) plans.
• Hearings Administrator – The administrator for fair and fraud hearings in the HHSC Appeals Division who oversees daily operations and staff conducting fair hearings.
• Hearings Officer – An HHSC employee designated by the director of the Appeals Division who is responsible for conducting fair hearings and issuing decisions.
• Integrated Care Management (ICM) Program – A Medicaid managed care plan where an ICM contractor manages and coordinates acute care services and long-term services and supports for eligible Medicaid clients.
• Language Services – Any services that ensure effective communication for full participation of all parties in a hearing.
• Managed Care Organization (MCO) – An entity that has a current Texas Department of Insurance certificate of authority to operate as a health maintenance organization (HMO) or as an approved nonprofit health corporation under the Texas Insurance Code.
• MOR – Managed Office Resources is the reporting structure in the TIERS application.
• Nursing Home Action – The nursing home's decision to transfer or discharge a client.
• OES – Office of Eligibility Services.
• Party – An appellant or his authorized representative or an agency or its representative.
• PASARR – Pre-Admission Screening Annual Resident Review Determination.
• Pre-hearing Conference – An informal conference that is scheduled by the hearings officer to resolve issues of procedure, jurisdiction or representation, or to clarify other issues prior to the fair hearing.
• Preponderance – The greater weight of the evidence required in a civil lawsuit for the trier of fact to decide in favor of one side or the other. This preponderance is based on the more convincing evidence and its probable truth or accuracy, and not on the amount of evidence.
• Primary Care Case Management (PCCM) – A managed care model allowed under federal regulations in which the Commission contracts with providers to form a managed care provider network.
• Person with Limited English Language Proficiency (LEP) – Person who does not speak English as a primary language and who has a limited ability to read, speak, write or understand English.
• Prior Authorization Request – A request for services that is reimbursable only if authorization or approval for the services is obtained before services are rendered.
• SNAP – Supplemental Nutrition Assistance Program, formerly known as Food Stamps.
• TANF – Temporary Assistance for Needy Families.
• Texas Health Steps (THSteps) – A program under Medicaid that provides medical and dental check-ups, diagnosis and treatment to eligible clients from birth through age 20. THSteps was formerly known as Early and Periodic Screening, Diagnosis and Treatment (EPSDT).

Revision 10-1; Effective January 15, 2010

1210 Notice of Proposed Adverse Action — 1 TAC §357.11

Revision 10-1; Effective January 15, 2010

The HHS agency follows notice requirements set forth in the appropriate state or federal law or regulations for the individual program. A notice must be sent to the client when a denial or reduction in services or eligibility action is taken. The notice must advise the client of the right to a fair hearing, how to request an appeal, the right to be represented by others, including legal counsel, available legal services in the community and an explanation of the circumstances when continued benefits may be available.

1220 Content of Notice – 1 TAC §357.11

Revision 11-4; Effective June 1, 2011

According to 45 CFR §431.210, relating to notice requirements for Medicaid-funded programs, "a notice is required under §431.206(c)(2), (c)(4) and must contain:

• A statement of what action the state, skilled nursing facility or nursing facility intends to take;
• The reasons for the intended action;
• The specific regulations that support, or the change in federal or state law that requires, the action;
• An explanation of:
  • The individual's right to request an evidentiary hearing if one is available, or a state agency hearing; or
  • In cases of an action based on a change in law, the circumstances under which a hearing will be granted;
• An explanation of the circumstances under which Medicaid is continued if a hearing is requested."
  
  In addition, denials or reductions of services provided to Medicaid clients under age 21, the Alberto N. settlement requires an explanation of why the request for services was denied and where appropriate, how to obtain services through other programs.

According to 7 CFR §473.13, relating to notices required for SNAP, "The notice of adverse action shall be considered adequate if it explains in easily understandable language:

• the proposed action;
• the reason for the proposed action;
• the household's right to request a fair hearing;
• the telephone number of the food stamp office (toll-free number or a number where collect calls will be accepted for households outside the local calling area) and, if possible,
  • the name of the person to contact for additional information;
  • the availability of continued benefits; and
  • the liability of the household for any over issuances received while awaiting a fair hearing if the hearing official's decision is adverse to the household. If there is an individual or organization available that provides free legal representation, the notice shall also advise the household of the availability of the service."

1230 Right to a Fair Hearing — 1 TAC §357.3(b)

Revision 11-4; Effective June 1, 2011

Clients of Medicaid-funded services, TANF, SNAP and other agency programs in which state or federal law or rules provide a right to a fair hearing, are entitled to appeal the following procedures:

• an action to reduce, suspend, terminate or deny benefits or eligibility;
• a failure to act with reasonable promptness on a client's claim for benefits or services;
• a decision to transfer or discharge a resident from a skilled nursing facility or nursing facility;
• an adverse determination made regarding Preadmission Screening and Resident Review;
• the denial of a prior authorization request;
• the failure to receive a service authorization request;
• the failure to reach a service authorization decision within the time period specified by federal law; and
• an action taken to recoup benefits previously paid to a recipient.

A client may appeal more than one action at the same time, in writing or orally unless specified in program rules or notices.

Issues related to non-payment of a claim to a provider are not appealable.

When an appellant dies during the appeal process, if the legal representative of the decedent's estate does not pursue the appeal, the hearings officer may consider the appeal withdrawn.

Three limitations apply to the right to request a fair hearing.

• A SNAP household can contest the SNAP benefit amount by requesting a fair hearing when it is aggrieved by a mass change in benefits.
• A client may appeal the application to him of an across-the-board reduction in benefits or services on the grounds that the mass change does not apply to him.
• Under all programs, the agency is not required to grant a hearing if the sole issue is a federal or state law requiring an automatic mass change adversely affecting some or all clients. This may be determined at a pre-hearing conference.

Note: HHS agency staff may not prevent a client from filing an appeal because staff believe that the item, services or benefit is not subject to appeal. The hearings officer determines if an issue is appealable.

1240 Time Period for Requesting a Fair Hearing — 1 TAC §357.3(b)(2)

Revision 11-4; Effective June 1, 2011

The appellant has a right to file an appeal within 90 calendar days from the effective date of the action or from the notice of adverse action date, whichever is later.

Exceptions:

• Pursuant to 7 CFR §273.15(g), a client may appeal his current level of SNAP benefits at any time during a certification period. A SNAP client may also appeal the denial of a request to restore benefits that were lost within one year prior to the request.
• According to program rules found in Title 40, Texas Administrative Code (TAC), Part 1, Chapter 19, Subchapter F, §19.502, a nursing facility resident who has received notice of a transfer or discharge has 10 days from the date of the notice to request an appeal. The hearings officer should review the notice to ensure that the nursing facility resident's rights were protected. Determination of good cause for failure to file a timely request for appeal applies.
• According to program rules in Title 1, TAC, Part 15, Chapter 375, Subchapter D, a participant in the Refugee Cash Assistance Program has 10 days from date of notice to request a fair hearing.
• According to program rules at Title 1, TAC, Part 15, Chapter 386, Subchapter D, §386.408, a participant in the Disaster Assistance program has 60 days from the date on the reconsideration decision letter to request a fair hearing.

Note: HHS agency staff may not prevent a client from filing an appeal because staff believe that the appeal was not requested within the required number of calendar days. The hearings officer is the final authority regarding the timeliness of filed appeals and accepts appeals filed after the time limit in order to determine whether there was good cause for the delay in filing.

If a request for a hearing is not received within the required time frame and the hearings officer determines good cause was not established for the failure to file timely, the individual has forfeited the right to a fair hearing and the agency action becomes final.

Revision 10-3; Effective May 21, 2010

1310 Forwarding the Request to the Hearing Officer — 1 TAC §357.7

Revision 10-3; Effective May 21, 2010

The agency must accept a request for a fair hearing for one or more actions and create an appeal in the Texas Integrated Eligibility Redesign System (TIERS) Hearings and Appeal module. The request must be entered into TIERS and sent to the Fair and Fraud Hearings section within five calendar days from the date the fair hearing was requested. This includes requests for appeals made after the 90-day time frame. Example: If the client requests an appeal on Tuesday, the fifth calendar day is Sunday. Program staff would need the appeal request no later than close of business on Friday.

1320 Continued Benefits — 1 TAC §357.11

Revision 10-1; Effective January 15, 2010

After a HHS agency program takes an action that affects a client's benefits or services, the client is entitled to receive, under certain circumstances, continued benefits or services until a hearing decision is issued. Whether a client is entitled to continued assistance is based on requirements set forth in appropriate state or federal law or regulation of the affected program.

Revision 10-1; Effective January 15, 2010

1410 Notice of Fair Hearing — 1 TAC §357.15(a)

Revision 11-4; Effective June 1, 2011

Form H4803, Notice of Hearing, serves as a notice of the hearing and meets all requirements of state and federal law. Hearings staff send Form H4803 to the appellant to acknowledge that the request for a hearing has been received and to set a time, date and place for the hearing. Form H4803 is sent to all parties listed on Form H4800, Hearing Request Summary, at least 14 calendar days in advance of the date the hearing is to be held.

All appointment notices are generated via TIERS Hearings and Appeals Correspondence. However, notices for a pre-hearing conference may be generated in Microsoft Word and mailed manually.

A Full Hearing Packet is sent to the Appellant and Appellant Representative, which includes a copy of Form H4800, Form H4803, Form H4805, Fair Hearings Procedures, and Form H4806, Request for Another Appointment — Request to Withdraw.

A Partial Hearing Packet is sent to the witnesses, which includes Form H4800 and Form H4803.

TIERS generates an alert to the agency representative when the Managed Office Resource (MOR) search function is used to create the appeal. If MOR was not used, a packet is generated that contains Form H4803.

1411 Date and Location — 1 TAC §357.15(b) and §357.17(a)

Revision 12-1; Effective January 9, 2012

Fair hearings may be conducted either by telephone or face-to-face.

It is within the hearings officer's discretion to determine if there is a good cause for a face-to-face hearing.

Most hearings are conducted by telephone in one of two ways. Either all parties call into a toll-free number at a designated date and time or the hearings officer calls all parties at a designated date and time.

The type of hearing and how to contact the hearings officer is provided in Form H4803, Notice of Hearing.

Fair hearings are normally scheduled in the order in which requests are received by the Fair and Fraud Hearings section. The hearing may be scheduled out of order if there is documentation indicating that waiting would jeopardize the appellant's health.

1420 Exception —Transient/Expedited Appeals — 1 TAC §357.17(b)

Revision 10-4; Effective July 16, 2010

HHSC conducts expedited appeals for situations involving transients or individuals whose health would be jeopardized by waiting.

Transient appeals are either SNAP and/or TANF appeals that are submitted by an appellant who plans to move from the jurisdiction of the hearings officer before the hearing decision normally would be issued. An example of a transient appeal is an appeal filed by a household that includes migrant farm workers. The hearing must be held and a decision made within 15 working days from the date the hearings officer receives the hearing request if:

• the appellant agrees to the reduced notice of the time, date and place of the hearing; and
• the hearings officer has sufficient information available to make a decision without requesting additional information.

An expedited appeal may be granted for an individual who believes and can demonstrate that a delay in a Medicaid hearing could seriously jeopardize his life or health. An expedited hearing may be requested by a Medicaid client who believes and can demonstrate that taking the time for a standard hearing could seriously jeopardize the individual's life or health or could threaten the individual's ability to attain, maintain or regain maximum function. This applies to appeals originating from denial or modification of a request for prior authorization.

A Medicaid client may demonstrate the urgent need for the services/benefits by providing documents to the hearings officer. The documents may include but are not limited to:

• the documentation provided to the program that is denying/modifying the request;
• a letter from the medical professional requesting the service/benefit; or
• testimony taken during a pre-hearing conference.

If the need for an expedited appeal is demonstrated, an expedited hearing must be held and a decision made within 15 working days from the date the hearings officer receives the hearing request, if:

• the appellant agrees to reduction of the usual advance notice requirement, and
• the hearings officer has sufficient information available from the appellant to make a decision without requesting additional information.

If neither condition is met, the hearing will transition into a standard fair hearing time frame.

If the hearings officer schedules the hearing as an expedited appeal, but during the development of the hearing record determines that additional evidence is needed to make the decision, the hearings officer should:

• explain on the record the additional evidence that is needed;
• determine if the needed evidence can be read into the record during the hearing to permit immediate consideration;
• determine from the appellant the time that will be required to obtain the additional evidence if it is not immediately available;
• schedule a time for the additional evidence to be submitted and a date for the hearing to be reconvened;
• explain and obtain agreement that the hearing decision can no longer be issued in an expedited manner;
• determine a date that a decision can be expected to be rendered. The hearings officer must keep in mind the seriousness of the issue for the well being of the appellant.

1430 When an Attorney Is Involved

Revision 14-2; Effective August 6, 2014

When there are multiple attorneys involved in the hearing, the hearings officer should provide the attorneys with a letter that includes suggested hearing dates for the attorneys to agree on and a time limit for notifying the hearings officer of a mutually agreed upon date for the hearing. The letter will also clearly instruct the parties to exchange evidentiary documents and provide copies to the hearings officer by a certain date. If the attorneys cannot agree upon a date, the hearings officer will set one for them.

Attorneys must provide the evidence to the other party and the hearings officer at least 20 days before the hearing. Failure to comply may be grounds for granting a continuance or for the evidence to be excluded from the hearing.

Even after receiving an agreed upon date, the hearings officer may receive requests for continuances because the attorneys have conflicts or are trying to resolve the issue appealed. Depending on the circumstances, it may be appropriate for the hearings officer to grant these requests and provide a new letter with additional dates for the parties to agree on and a time limit for notifying the hearings officer.

When more than one continuance is requested, the hearings officer should discuss this with the hearings manager and/or the hearings administrator. Additional continuances may be granted when good cause exists.

Continuances should not, however, lead to postponing a hearing for an unreasonably long period of time.

When a nonresident, pro bono attorney represents children in Medicaid fair hearings: A pro bono attorney who is a resident of and licensed to practice law in another state, and who is not a member of the State Bar of Texas, shall comply with the requirements of Texas Government Code, Title 2, Subtitle G, Chapter 82, §82.0361, Nonresident Attorney Fee, and Rule XIX of the Rules Governing Admission to the Bar of Texas, Requirements for Participation in Texas Proceedings by a Non-Resident Attorney, before entering an appearance on behalf of a child in an appeal authorized under Texas Human Resources Code, Title 2, Subtitle C, Chapter 32, Medical Assistance Program. Rule XIX is located on the Texas Board of Law Examiners website.

1431 Time Frames for Processing Requests to Reopen

Revision 11-4; Effective June 1, 2011

After the hearing is closed, the date the appellant contacts hearings staff, either in person or in writing, is considered the request to reopen date. The hearings officer has 30 calendar days from the date of the request to reopen to determine whether or not to reopen the hearing.

If the hearings officer decides to reopen the hearing, a new decision must be issued within 60 days of the date the request to reopen was received for SNAP cases and within 90 days for all other types of cases, unless there are delays. The delays that apply to initial hearings are applicable to reopened hearings. A list of delays is in 1723, Delays in Issuing a Decision – 1 TAC §357.23(a)(3).

1440 Continuances/Postponements — 1 TAC §357.19(a)

Revision 14-2; Effective August 6, 2014

The hearings officer considers a request to postpone a hearing only if the appellant, his authorized representative, the agency or the Office of General Counsel attorney contacts the appropriate hearings officer before the scheduled hearing is to occur. In SNAP cases, the appellant is entitled to receive one postponement of up to 30 calendar days. In all other hearings, the hearings officer may postpone a fair hearing if the hearings officer determines that good cause exists. Except for one continuance for a SNAP appellant, a party is not entitled to a continuance. A continuance is granted at the discretion of the hearings officer for good cause. Good cause must be substantive and not for convenience. Good cause exists when there is a circumstance or excuse that is beyond the reasonable control of the parties.

The hearings officer may consider whether the appellant is receiving continued benefits in deciding whether to grant a continuance.

When the agency is represented by an attorney and the appellant is not receiving continued benefits, only one continuance may be granted for good cause. The effect of the delay on the appellant should be carefully considered.

A rescheduled appointment notice, Form H4803, Notice of Hearing, acknowledges a hearings officer's agreement to postpone and is sent to the appellant and agency.

A postponement may occur only if the hearing has not taken place and a decision has not been issued. A postponement may not be applied to an appeal that is closed.

Note: The terms continuance and postponement are used interchangeably.

Note: A request for continuance/postponement by the agency must be made within five calendar days of the date of the notice or alert.

Revision 11-4; Effective June 1, 2011

1510 Hearings Officer's Powers and Duties – 1 TAC §357.5

Revision 11-4; Effective June 1, 2011

A fair hearing is conducted by an impartial hearings officer who:

• does not have a personal involvement in the case;
• was not involved in the initial determination of the action that is being contested; and
• was not the agency representative who took the action or the immediate supervisor of that representative.

The hearings officer's supervisor may reassign the fair hearing to another officer.

1511 Responsibilities

Revision 11-4; Effective June 1, 2011

The hearings officer conducts the fair hearing as an informal proceeding, not as a formal court hearing, and is not required to follow the Texas Rules of Evidence or the Texas Rules of Civil Procedure.

1512 General Duties

Revision 11-4; Effective June 1, 2011

The hearings officer:

• determines whether a client requested a fair hearing in a timely manner or had good cause for failing to do so;
• schedules a pre-hearing conference to resolve issues of procedure, jurisdiction or representation, if necessary;
• requests the attendance of agency representatives or witnesses, if necessary;
• is prohibited from engaging in ex parte communication, whether oral or written, with a party or the party's representative or witness relating to matters to be adjudicated; and
• arranges for reasonable accommodations for disclosed disabilities.

1513 Limitation of Authority of Hearings Officers

Revision 11-4; Effective June 1, 2011

A hearings officer does not have the authority to determine if policy is contrary to law or unconstitutional. When an appellant or his legal representative alleges a policy is contrary to law or unconstitutional, the hearings officer should state that the hearing decision will be based on program policy in effect at the time of the agency action. If a challenge is made that an action was contrary to law, or the basis for the action is unconstitutional, the hearings officer will seek a legal opinion as outlined in 1569, Obtaining a Legal Clarification.

1514 Preparing for the Hearing

Revision 11-4; Effective June 1, 2011

In preparing for the hearing, the hearings officer reviews the documents submitted and formulates questions to fully develop the record.

Form H4800, Hearing Request Summary, is reviewed to:

• determine the program involved;
• the issue on appeal;
• if benefits have been continued;
• if the appeal was filed timely;
• the action effective date;
• the date the agency was notified of the appeal;
• whether an interpreter is needed and if so, what language;
• if special accommodations are needed;
• if witnesses will appear on behalf of the appellant or agency; and
• if the appellant has an attorney or authorized representative.

The agency notice is reviewed to verify the issue on appeal and to determine whether the notice meets the requirements set forth in the applicable authority for the program at issue.

The authority relied upon and provided by the agency in support of the agency action is reviewed.

The hearings officer reviews the evidence submitted by all parties to become familiar with the evidence as it relates to the issue on appeal, formulates questions to be answered during the hearing, and determine if additional evidence is needed to develop the record.

1515 Pre-hearing Conference — General

Revision 11-4; Effective June 1, 2011

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 held on overpayment claims hearings to determine if the overpayment is the result of a court order, the household received the appropriate notice to determine jurisdictional issues or if there was good cause for requesting the hearing past the filing time frame. A pre-hearing conference is appropriate when the sole issue on appeal is a change adversely affecting some or all clients.

It is not necessary to conduct a good cause hearing to determine good cause whenever it is an issue. 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.

The results of the pre-hearing conference are addressed in the Decision and Final Order.

1520 Group Hearings — 1 TAC §357.17(c)

Revision 10-1; Effective January 15, 2010

The HHSC Appeals Division must grant a group hearing if recipients request a group hearing on a question of agency policy. In all cases except SNAP cases, the request for a group hearing must be in writing, signed by each appellant and state the common issues. Requests for group hearings in SNAP appeals may be either oral or written. An appellant may withdraw from a group hearing at any time before a final decision is issued. If an appellant wishes to withdraw, he must make the request in writing and sign it. Group hearings follow the same procedures as individual hearings.

1530 Attendance at Hearing — 1 TAC §357.5(2)(d)-(e), §357.25(c)(3)

Revision 11-4; Effective June 1, 2011

The fair hearing is not open to the public, but friends and relatives of the appellant may attend if the appellant chooses. All people attending the hearing must have an:

• interest in the rights of the appellant; and
• opportunity to provide information pertinent to the issues under consideration, if called by the appellant or agency representative, unless the hearings officer determines the testimony would be unduly repetitious.

For an in-person (face-to-face) hearing, all parties must appear unless other arrangements are made with the hearings officer.

The hearings officer has the authority to limit the number of people attending the fair hearing if space or equipment issues make conducting an orderly hearing difficult.

The appellant may record the hearing or request a copy of the recording from the hearings officer, at no cost. The hearings officer controls the use by others of cameras, videos or other recording devices.

1540 Burden of Proof — 1 TAC §357.9

Revision 10-1; Effective January 15, 2010

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, on the whole, 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.
• The nursing facility bears the burden of proof in transfer and discharge hearings.

1550 Private (Ex Parte) Communication — 1 TAC §357.5(c)(1)(D)

Revision 11-4; Effective June 1, 2011

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. A decision maker is prohibited from discussing the substance of the case with one of the parties or an agent of the parties without the opposing party being present or notified of the information discussed and being given an opportunity to rebut the information. A hearings officer shouldn't discuss how he may rule or any aspect of the issues with a party unless the other party is present. Additional information submitted by either a program person or the appellant or their representative after or outside of the hearing is considered ex parte communication. If inadvertent comments are made by a party and have not been shared with the opposing party, the hearings officer can correct the problem of ex parte communication by convening the hearing with the parties present and providing complete information about the ex parte communication that occurred.

A program person, agency attorney, 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 request has been received. As long as the contact is limited to this type of question, it is not considered ex parte communication. This is considered to be procedural. A hearings officer must distinguish between procedural and ex parte communication.

Ex parte communication does not include discussion of an appeal with supervisors in the Appeals Division chain of command.

1560 Conducting the Hearing — 1 TAC §357.5(c)(2)(J)

Revision 11-4; Effective June 1, 2011

Hearings officers are responsible for regulating the conduct and course of the hearing to ensure due process and an orderly hearing. This includes:

• setting the tone of the hearing through the use of calm authority;
• emphasizing the requirement that only one person speak at a time; and
• explaining that each party will have an opportunity to present his side.

When a participant behaves inappropriately and disrupts the hearing, the hearings officer may take action, including but not limited to:

• issuing warnings that explain expected behavior and the consequences of non-compliance;
• offering a recess to allow time for participants to gain self-control;
• rescheduling the hearing for a future date; or
• using the mute function in Avaya.

The mute function in Avaya should only be used to control the hearing as a last resort. If used inappropriately, the parties' rights to a fair and impartial hearing could be compromised. Before activating the mute function in Avaya:

• the hearings officer should warn the disruptive party that if he does not remain calm, his phone will be muted.
• the hearings officer should consider permitting the disruptive party an opportunity to present his testimony and evidence outside the normal order in the hearing. Once the person has had an opportunity to present his argument and is listened to, the person often will become calm and his behavior is manageable for the remainder of the hearing.
• if the party continues the disruptive behavior, the hearings officer advises him that his phone is being muted, but that he is to stay on the line as he will still be able to listen to the hearing. The hearings officer further advises him that he can present his testimony when the mute function is turned off.
• the hearings officer should also explain that if the disruptive party hangs up while his phone is on mute, the hearings officer may rule that he abandoned the hearing.
• the hearings officer should also advise the party that if he is disconnected, the hearings officer will make at least one attempt to call the party to permit the hearing to continue. If the party can't be reached, the hearings officer may rule that he abandoned the hearing.

1561 Starting the Hearing — 1 TAC §357.5(c)(2)

Revision 14-2; Effective August 6, 2014

The hearing is recorded either by a tape recorder or a digital recording system.

All parties, representatives and witnesses may participate by telephone, in-person or a combination of the two.

The hearings officer will make every attempt to start the hearing on time. The hearings officer is responsible for being on time and beginning on time. If there is a delay due to the previous hearing taking longer or some other unavoidable delay, the hearings officer should ask an administrative assistant to notify the parties in the next hearing of the anticipated start time. All parties should be available at the time the hearing is scheduled to begin. For hearings held via a conference call, the hearings officer waits seven minutes from the time listed on the appointment notice to allow parties to call in to the conference call.

1562 During the Hearing

Revision 10-4; Effective July 16, 2010

 

1562.1 Hearings Officer's Responsibility

Revision 10-4; Effective July 16, 2010

During the hearing, the hearings officer:

• makes the official recording of the hearing;
• ensures that the appellant's and agency's rights are protected;
• determines whether there is a need for an interpreter;
• limits the number of people in attendance at the hearing if space is limited;
• controls the use by others of cameras, videos or other recording devices;
• administers oaths and affirmations;
• ensures consideration of all relevant points at issue and facts pertinent to the appellant's situation at the time the action was taken with attention to issues of particular concern to the appellant;
• considers the appellant's changed circumstances, when appropriate and possible;
• requests, receives and makes part of the record all relevant evidence;
• regulates the conduct and course of the fair hearing to ensure due process and an orderly hearing;
• conducts the hearing in a way that makes the appellant feel most at ease but meets minimal requirements; and
• orders, if determined to be necessary, an independent medical assessment or professional evaluation to be paid by the agency or the agency's designee.

1562.2 Appellant's Rights — 1 TAC §357.13(d)

Revision 10-4; Effective July 16, 2010

The appellant or his representative must have the opportunity to:

• examine evidence to be used in the fair hearing before the fair hearing begins;
• examine or request copies (at no cost) of all documents and records used at the hearing;
• present the case personally or with the aid of others, including legal counsel;
• bring witnesses;
• establish all pertinent facts and circumstances;
• present arguments or make statements about the case without undue interference;
• present documentary evidence; and
• question or refute any testimony or evidence, including confronting and cross-examining adverse witnesses.

1562.3 Requesting a Case File — 1 TAC §357.13(b)(7)(A)

Revision 11-4; Effective June 1, 2011

Appellants have a right to view their case files to prepare for the hearing. H4805, Fair Hearing Procedures (PDF), advises the appellant of this right and to contact the hearings officer if he 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.

If the hearings officer receives this request for an appeal related to an Office of Eligibility Services (OES) action, he will send a letter to the regional attorney and the agency representative with a copy to the hearings administrator.

If the hearings officer receives this request for any other program, he will send a letter to the agency representative and the agency representative's supervisor with a copy to the hearings administrator. For MCO appeals, the hearings officer will send a copy of the letter to the health plan manager and Cindy Jorgensen. A list of health plan managers can be found in Appendix V, Health Plan Management.

In both instances, the hearings officer will monitor to ensure the agency responds to the request for the case file. The case file should be provided to allow enough time for the appellant to review the information before the hearing. The hearings officer may need to reschedule to provide sufficient time for the appellant to review the documents prior to the hearing.

If there is a question about confidentiality of any information within the case file, the agency representative should contact the appropriate legal division to ensure the requested information may be shared.

1562.4 Appellant's Responsibilities — 1 TAC §357.13(e)

Revision 10-4; Effective July 16, 2010

The appellant or the appellant's authorized representative is responsible for:

• participating in the fair hearing; and
• informing the hearings officer before the fair hearing that the appellant needs an interpreter or other accommodation due to a disability.

1562.5 Agency Responsibilities — 1 TAC §357.7

Revision 11-4; Effective June 1, 2011

The agency representative must appear at the scheduled hearing and be prepared to explain and defend the decision or action taken against the appellant. When the denial or modification of private duty nursing services for clients under age 21 is the issue on appeal; the medical director acts as the agency representative at the hearing.

The agency representative is also responsible for ensuring that copies of documents used to determine the agency action are provided to both the hearings officer and the appellant before the hearing.

1563 Short Hearings

Revision 10-1; Effective January 15, 2010

If the agency representative admits early in the hearing that he is unable to defend the agency action or admits that the agency action was taken in error, the hearings officer:

• ensures that all parties are under oath and that the appellant understands what is going on;
• explains why the hearing will not continue and that the agency action will be reversed; and
• determines whether the appellant is satisfied with the action the hearings officer will take and the instructions that will be issued.

If all these conditions are met, the hearings officer states:

"As presiding hearings officer in this case, I have determined that the agency failed to act on appellant's request for services appropriately. I am issuing an order to reverse the agency's action and will instruct the agency to take action to issue benefits accordingly."

The hearings officer then issues the decision using the shortened decision format.

1564 Developing the Record

Revision 10-1; Effective January 15, 2010

 

1564.1 When the Agency Representative Does Not Appear for the Hearing

Revision 10-1; Effective January 15, 2010

If the agency representative does not appear for the hearing and does not submit written documentation, the hearings officer opens the record and states that the agency representative did not appear. The hearings officer states that the appellant is present and available either by phone or in person. The hearings officer will take no testimony. The hearings officer closes the record and issues a decision reversing the agency action. The hearing decision will instruct the agency to take the appropriate steps to implement the decision.

It the agency representative does not appear for the hearing but submits written documentation, the hearings officer opens the record and makes a statement to that effect. The hearings officer further states that, while the agency representative submitted documents, the absence of the agency representative prevents the documents from being authenticated or explained and prevents the appellant from cross-examining the agency concerning the documents. For these reasons, the documents will not be entered into evidence. The hearings officer will take no testimony. The hearings officer will close the hearing and issue a written decision reversing the agency action. The hearings officer will instruct the agency to take the appropriate action to implement the decision.

1564.2 When the Appellant Does Not Appear for the Hearing

Revision 11-1; Effective February 1, 2011

 

1564.2.1 Hearings Held Via a Conference Call

Revision 14-2; Effective August 6, 2014

If the hearing is conducted via conference call, the hearings officer will wait seven minutes from the time listed on the appointment notice to allow parties to call in to the conference call. If the appellant fails to call in at the scheduled time, the hearings officer opens the record and states that the agency representative called in, but the appellant failed to call in. The hearings officer takes no testimony, but notes the time given on the notice and the time the record is closed. The hearings officer closes the record and issues a written decision dismissing the appeal.

1564.2.2 Face-to-Face Hearings

Revision 14-2; Effective August 6, 2014

If the appellant fails to appear at the hearing, the hearings officer will wait seven minutes from the time listed on the appointment notice for all parties to appear. If the appellant fails to appear, the hearings officer opens the record and states that the agency representative appeared, but the appellant did not appear. The hearings officer takes no testimony, but notes the time given on the notice and the time the record is closed. The hearings officer closes the record and issues a written decision dismissing the appeal.

1565 Agency Action Notice Issues

Revision 11-4; Effective June 1, 2011

Whenever an adverse action is taken, programs are required to send an adequate notice to the client. Federal law sets out what is to be included in adverse action notices. If the appellant raises an issue at the hearing questioning the sufficiency of the notice, the hearings officer must address the issue at that time. The hearings officer may direct the agency to send a corrected notice, in accordance with all legal requirements. The appellant may choose to waive any notice issues and continue with the hearing.

Notices are of particular importance in nursing facility discharge hearings and in Personal Care Service hearings and adequacy of the notices must be addressed as an issue within the hearing in addition to other issues listed as the basis for the intended adverse action. In these appeals, if the notice issue is not raised by the appellant, the hearings officer must develop the record to include information to determine the legal adequacy of the notice.

1565.1 When Appellant Raises a Notice Issue

Revision 10-1; Effective January 15, 2010

If the appellant raises a notice issue, either directly or indirectly, it must be dealt with by the hearings officer on the record. The appellant has the right to receive adequate notice. However, the appellant can waive any notice issues and continue with the hearing. It is the hearings officer's responsibility to establish if the appellant wants to waive any issues on adequate notice. If the appellant waives any notice issue, then the hearing can proceed and notice is no longer an issue.

If the hearings officer determines that the notice is not adequate and appellant does not waive his right to receive adequate notice, the hearings officer instructs the agency representative to prepare a new notice and provide it to the appellant. After the new notice is provided, the hearings officer reconvenes the hearing.

Notice issues raised and how they were resolved should be noted in the hearings officer's decision under Procedural History.

1565.2 When Appellant Does Not Raise a Notice Issue

Revision 11-4; Effective June 1, 2011

If the appellant does not mention the adequacy of the notice he received, the hearings officer assumes the issue is waived by the appellant and proceeds with the hearing. In general, the hearings officer does not bring up the issue of adequate notice on his own, except as noted in 1565, Agency Action Notice Issues.

1566 Receipt of Program Notices

Revision 11-4; Effective June 1, 2011

An appellant may testify at the hearing that an appointment notice or a request for additional information was not received.

The hearings officer should address this issue by asking questions and taking testimony from both the appellant or the appellant's representative and the agency representative. Sworn testimony from the appellant is first-person testimony. Testimony from the agency representative is usually direct testimony about normal agency procedure, but is possibly hearsay in regard to the specific piece of mail being considered.

While the agency representative may not be able to provide physical proof that the notice in question was sent, he should be able to state for the record the office mailing procedures, the date the notice was actually mailed and the address where it was mailed.

The hearings officer may ask the appellant or the appellant's representative questions about how the mail is received at the home, who actually gets the mail, whether other agency mail has been received in the past or received regularly (such as a Medicaid ID form). Testimony from a representative for the appellant may not carry the same weight as sworn testimony from the appellant. Particular attention can be given to mail from the same agency within a similar time frame that was received at the same address as the item being considered. Other issues with mail that have been reported to the Post Office due to non-receipt and corroborating testimony regarding mail issues can be given consideration.

The Hearings Section has taken the position in the past that if a letter is sent and not returned, the sender may presume the letter was received.

The hearings officer must base the decision on an evaluation of the evidence and testimony presented at the hearing. Given the presumption that a letter sent is one received, the hearings officer must determine if the appellant has presented evidence that overcomes that presumption. If sworn testimony from the appellant was heard, the decision will involve a determination of credibility. The decision should include findings of fact regarding the determinations used in reaching the decision on whether the letter was received.

1566.1 Testimony and Evidence

Revision 12-4; Effective October 23, 2012

The hearings officer ensures the appellant has an opportunity to review any evidence to be used in the hearing before the hearing. If the appellant has not had an opportunity to review the evidence, the appellant should be given the option of having the evidence read into the record or rescheduling the hearing.

If parts of the case record are used during the hearing, the appellant may see them and have them placed in evidence. 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 file.

If no evidence is offered into evidence at the hearing or provided to either the hearings officer or the appellant before the hearing, the hearings officer should ensure that the hearing follows correct procedures and gives consideration to the rights of all parties. The hearings officer should inform the appellant of his rights when the agency fails to provide the exhibits and/or documents in advance. The hearings officer should ask the parties if they agree to allow the documents to be read into the record and then share a written copy with all parties. The appellant should have an opportunity to respond to what was read into the record.

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 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.

All exhibits provided to the hearings officer are part of the record, and the hearings officer must ensure that each one is properly labeled and clearly addressed on the record. An exhibit is not admitted into evidence until the hearings officer states "I am admitting this document as exhibit blank."

Documentary evidence provided to the hearings officer falls into several categories:

• exhibits offered and admitted;
• exhibits offered and not admitted;
• exhibits provided, but not offered; and
• duplicates of the same exhibit.

To make the organization of all records consistent, hearings officers should consult Appendix I, Fair Hearing Case Record Filing. All documents provided to the hearings officer are filed behind the appropriate tab.

1566.2 Exhibits Offered and Admitted

Revision 10-1; Effective January 15, 2010

In order 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 "I want to offer this exhibit" or "I want this document or exhibit considered." It also may be accomplished by the hearings officer asking the party if he/she wants 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 and if the exhibit is relevant to the issues to be decided or if the objection is not persuasive, the hearings officer admits the exhibit. The hearings officer states: "This exhibit will be admitted as exhibit number or letter blank."

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.

1566.3 Exhibits Offered and Not Admitted

Revision 10-1; Effective January 15, 2010

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. He then files the exhibit in the file under the tab marked "Exhibits Not Admitted."

1566.4 Exhibits Provided But Not Offered into Evidence

Revision 10-1; Effective January 15, 2010

Often documents may be provided to the hearings officer that the party decides not to offer into evidence. This may happen when the agency representative sends a complete case file as evidence, without first ascertaining if all documents are relevant to an issue on appeal. When asked about a particular document at the hearing, the agency representative may state that the document should not have been included in the packet, or he may indicate that the document need not be considered.

In this situation, the hearings officer makes sure the document is clearly identified, states on the record that the document was not offered into evidence and files it in the file under the tab marked "Exhibits Not Offered."

1566.5 Duplicates of the Same Exhibit

Revision 10-1; Effective January 15, 2010

There are times when duplicate copies of the same document are provided to the hearings officer. This may occur when the evidence packet is both faxed and mailed to the hearings officer. The hearings officer admits only one copy of each exhibit, clearly identifying the document on the record. The hearings officer files duplicate copies in the file folder under the tab marked "Exhibit Duplicates."

Note that there are also times when duplicate copies of the same document may be admitted. This may occur where the agency representative offers a form as one of his exhibits and the hearings officer admits it. Then, in the appellant's packet, there is also a copy of the same form and it is offered by the appellant. While this is a duplicate of a document, it is not a duplicate of an exhibit. These are two separate and distinct exhibits and both should be identified and admitted as such.

1566.6 Labeling Exhibits

Revision 11-4; Effective June 1, 2011

There is no need for a hearings officer to distinguish between the appellant's exhibits and the agency's exhibits when labeling and referring to them in the decision. All documents submitted to the hearings officer are part of the hearings record; however, not all of the documents will be admitted into evidence. The hearings officer must ensure that all exhibits are clearly labeled if they are offered. If documents are not offered, the hearings officer does not have to label the document, but he does have to clearly identify each document on the record and state the documents are being annotated as not having been offered or admitted. The labeling of the exhibits must be identical to the information stated on the record as each document is identified.

1566.7 Handling Objections

Revision 10-1; Effective January 15, 2010

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

When an exhibit is offered and there is an objection to it being admitted, the hearings officer should clarify what the objection is to the document.

Example: A party may allege that the document is not authentic or that it is not a true and correct copy of the original 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 the hearings officer refuses to admit a document for any reason, he should state the reason why he is not admitting the document into evidence.

1566.8 When to Admit Exhibits

Revision 10-1; Effective January 15, 2010

At the beginning of the hearing, the hearings officer must ensure that the client and the agency representative have copies of all the documents to be considered at the hearing, or that the client has waived his right to have them and is willing to proceed with the hearing. The hearings officer must address this on the record.

While there is not one "correct" time during the hearing when a hearings officer must discuss exhibits and admit them, it is not appropriate to allow a party or witness to talk about a document that has not been offered into the evidence. For example, if the agency representative begins discussing a document that has not been admitted, the hearings officer asks, "Do you want me to consider this document?" If the agency representative says yes, the hearings officer should then ask the appellant if he has any objection to the document being admitted as evidence. If there is no objection, the hearings officer states, "This document will be admitted as exhibit blank."

It is also appropriate to identify and admit all documents at the beginning of the hearing, as this practice may move the hearing along and minimize interruptions or confusion. It is also good practice to quickly review the exhibits at the end of the hearing to make sure all exhibits have been properly identified and handled.

1567 Closing the Hearing

Revision 10-1; Effective January 15, 2010

After all testimony is given and documents received, the hearings officer closes the hearing and explains when the hearing decision can be expected.

1568 Requesting Additional Documents

Revision 11-4; Effective June 1, 2011

The hearings officer does not have subpoena authority. The hearings officer has responsibility for appropriately developing the hearing record and may request additional witnesses and/or documentation when further clarification is needed.

If additional documents are requested or additional witnesses must be notified, 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.

1569 Obtaining a Legal Clarification

Revision 11-4; Effective June 1, 2011

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 law. To submit a request for legal clarification, the hearings officer discusses the issues being considered with the area manager, who forwards the request to the hearings administrator. The hearings administrator sends the request for legal clarification, if appropriate, to the Legal In-Box in Outlook under HHSC Retransplanting.

The legal clarification request and response must be shared with all parties and each side must have an opportunity to provide comment or rebuttal of the opinion. The hearings officer must reconvene the hearing to permit discussion of the clarification by all parties.

1570 Recessed Hearings — 1 TAC §357.19(d)

Revision 10-1; Effective January 15, 2010

Once a hearing begins, the hearings officer may recess the hearings proceedings if the hearings officer finds good cause for the recess. Following notice to both sides, the hearings officer may reconvene the hearing, if necessary.

1571 Example of a Recessed Hearing

Revision 10-4; Effective July 16, 2010

The appellant asks the hearings officer if he may leave the hearing open so he can obtain additional information to support his case. The hearings officer agrees to leave the record open and sets a deadline for the appellant to submit the additional information. Once that information is received, the hearings officer will ensure the agency representative receives the additional documents. Then the hearings officer schedules a date to reconvene the hearing.

The reconvened hearing will focus on the additional documentation provided by the appellant.

If no additional information is received from the appellant by the due date, the hearings officer issues a decision based on evidence provided at the hearing.

1580 Interpreters

Revision 10-1; Effective January 15, 2010

 

1581 Spanish/English Interpreters – 1 TAC §357.1(11) and §357.21(b)

Revision 10-1; Effective January 15, 2010

HHSC provides an interpreter to those applicants/clients and witnesses who have bona fide language barriers to ensure that they will be able to participant in the hearing. People with language barriers may include people who are unable to understand or communicate in English or whose ability to understand or communicate in English is limited.

A certified interpreter is one who is certified by one of the following entities:

• American Translators Association;
• Federally Certified Court Interpreter through the Federal Court Interpreter Certification Examination;
• Interpreter Certification offered through a four-year college or university;
• State Certification Programs;
• U.S. Department of State (Escort, Seminar or Conference level); or
• any other nationally recognized certification program.

1582 Other Interpreters — 1 TAC §357.21(b)

Revision 11-4; Effective June 1, 2011

HHSC Appeals Division makes every effort to use the most qualified interpreter for a person with limited English proficiency whose native language is not English or Spanish. The agency contracts with several interpreter services to provide language interpretation services for many different languages.

HHSC Appeals Division provides a qualified sign language interpreter for a person who is hearing impaired and requests the service. If the appellant needs a sign language interpreter for the hearing, the hearings staff will submit Form HHSC-OPS004, HHSC Request for Sign Language and Oral Interpreting Services, at least 48 hours before the appointment.

If required by the circumstances, the HHSC Appeals Division will arrange to provide other assistance in accordance with commission policy.

If an appellant wants a family member or friend to interpret, the hearings officer will explain that a trained interpreter is needed to provide interpretation for the hearing record to ensure accuracy, but the family member or friend may provide assistance to the appellant as needed, and may assist the appellant in the presentation of his case.

1583 Right to Request an Interpreter — 1 TAC §357.21(a)(1)

Revision 10-1; Effective January 15, 2010

When an appellant requests a fair hearing, program staff create an appeal in the TIERS Hearings and Appeal module, which generates Form H4800, Hearing Request Summary. This form includes a space to indicate whether an interpreter is needed for the hearing.

H4805, Fair Hearing Procedures (PDF), accompanies the appointment notice and instructs the appellant to contact the hearings officer at least two business days before the hearing date if an interpreter is needed for the hearing.

The hearings officer informs the appellant on the record that he will be provided an interpreter at no cost if the appellant demonstrates that the appellant or required participants are not able to participate in the hearing because of a communication barrier.

1584 Determination of Necessity for Interpreter — 1 TAC §357.21(a)(1)

Revision 10-1; Effective January 15, 2010

The hearings officer determines on a case-by-case basis whether an interpreter is necessary.

No interpreter is required if the hearings officer determines that all participants are sufficiently able to communicate so that no barrier is present. The basis of the hearings officer's decision will be stated on the record.

1585 When an Interpreter is Not Needed – 1 TAC §357.21(a)(2)

Revision 10-1; Effective January 15, 2010

When an interpreter has been requested, the hearings officer may decide that an interpreter is not required under the following circumstances:

• In cases where all hearing participants are able to communicate effectively in the appellant's primary language, the hearing may be conducted in the appellant's primary language if the following requirements are met:
  • all hearing participants state on the record that they can communicate effectively in the appellant's primary language; and
  • the hearings officer informs the appellant on the record in a language the appellant understands that he will be provided an interpreter at no cost to the appellant if the appellant can show good cause to use an interpreter.

The basis for the hearings officer's decision is stated on the record.

• When an interpreter has been requested but all hearing participants, including witnesses, are sufficiently fluent in English to be able to communicate effectively so that no language barrier is present, the hearing may be conducted in English if the following requirements are met:
  • all hearing participants, including witnesses, state on the record that they are sufficiently fluent in English so that no language barrier is present; and
  • the hearings officer informs the appellant on the record that he will be provided an interpreter at no cost to the appellant if the client can show good cause to use an interpreter.

The basis for the hearings officer's decision shall be stated on the record.

1586 Requirements for Interpreters

Revision 10-1; Effective January 15, 2010

When an interpreter participates in a hearing, the interpreter must interpret in the first person and not the third person.

Interpreters must give complete and accurate interpretations and document translations without changing, omitting or adding anything to what has been spoken or written. Interpreters must not attempt to explain what is spoken or written. They are to interpret every spoken or written statement, even if it may appear to the interpreter to be non-responsive, obscene, rambling or incoherent.

The interpreter must maintain the confidentiality of client records. Information obtained during a hearing must not be disclosed outside the hearing or at a later hearing.

Interpreters must limit themselves to interpreting or translating documents and must not give advice, express opinions, explain, edit or in any way insert comments in the hearing.

An interpreter must not initiate communication unless it is necessary to seek assistance when interpreting, as when speech is not understood, speech needs to be repeated, speakers need to speak slower or clearer, or to correct an interpretation error. In these instances, the interpreter must make it clear that the communication is not an interpretation but is needed for clarification.

If an interpreter has reservations about the ability to interpret competently, the interpreter must bring it to the attention of the hearings officer. The interpreter must also tell the hearing officer if there are circumstances making it difficult to interpret, such as too much noise, more than one person speaking at the same time, or witnesses speaking too rapidly or too long.

During a long hearing, the interpreter should notify the hearings officer of any need for a break.

The interpreter must immediately inform the hearing officers of any attempt to impede, prevent or interfere with interpretation consistent with these requirements.

Interpreters must not use gestures unless they are providing sign language services.

1587 Procedures for Hearings Officers Related to Interpreters

Revision 10-1; Effective January 15, 2010

 

1587.1 The Role of the Interpreter

Revision 10-1; Effective January 15, 2010

The hearings officer must explain the role of the interpreter to all parties before the hearing. The explanation will be provided in English and the client's first language.

The hearings officer must establish on the record that the interpreter:

• provides an accurate and complete description of qualifications, including whether the interpreter is on the most current master list of HHSC interpreters;
• communicates effectively with all parties and witnesses;
• takes the interpreter's oath (the hearing officer administers the oath to the interpreter in the presence of all parties), to reinforce everyone's awareness of the interpreter's role; and
• is a disinterested party not familiar with the case or the appellant.

1587.2 Interpreter Oaths or Affirmations

Revision 10-1; Effective January 15, 2010

The interpreter must be impartial and unbiased. If there is any conflict of interest, it should be brought to the hearings officer's attention.

The following are examples of interpreter oaths:

• Do you swear or affirm that you will to the best of your ability truthfully and impartially interpret and/or translate completely and accurately from English into (state language) the questions about to be asked, and from (state language) into English the answers about to be given in this case?
• Do you solemnly swear (or affirm) that you will truthfully interpret or translate from English into (state the other language) the questions about to be asked and from (state the other language) into English the answers about to be given in the case to the best of your ability?
• Do you solemnly swear (or affirm) that you justly, truly and impartially will interpret to (witness's name) the oath, the questions that are asked and the answers that (he/she) gives?

The interpreter must respond "I do," "I swear" or "I affirm."

1587.2.1 Examples of Conflicts of Interest

Revision 10-1; Effective January 15, 2010

The following must be brought the hearings officer's attention if the interpreter:

• has worked on the client's case in some capacity;
• has a financial interest in the outcome of the case; or
• is a friend or relative of a party to the case.

1587.3 Curing Inaccuracies

Revision 10-1; Effective January 15, 2010

The hearings officer has the responsibility to remedy inaccuracies in the interpretation, if they are brought to the hearing officer's attention. The hearing officer must halt or reset the hearing if it is necessary to obtain a qualified interpreter.

1588 Complaints Regarding Quality of Interpretation — 1 TAC §357.21(c)

Revision 10-1; Effective January 15, 2010

If a party or authorized representative makes a legitimate objection concerning the quality or accuracy of the interpretation by an interpreter, the hearings officer:

• informs the authorized representative and the appellant of the right to request that the case be reheard;
• addresses the objection or complaint concerning the quality of the interpretation including a request to rehear the case;
• finishes the hearing with the original interpreter; or
• provides a new interpreter at a later date.

Revision 10-1; Effective January 15, 2010

1610 Discovery — 1 TAC §357.13(b)(7)

Revision 10-1; Effective January 15, 2010

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 hearing 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 fax them to the agency representative before the hearing.

1620 Written Interrogatories

Revision 10-4; Effective July 16, 2010

An appellant or an appellant representative or legal counsel may send written interrogatories or request a pre-hearing conference to get additional information.

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.

The interrogatories may be introduced at the hearing. The hearings officer will determine if they are relevant to the issue on appeal.

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

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

1630 Evidence — 1 TAC §357.5

Revision 12-5; Effective November 8, 2012

The hearings officer conducts the fair hearing as an informal proceeding, not as a formal court hearing, and 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 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 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.

1640 Additional Medical Assessment — 1 TAC §357.5(c)(2)(L)

Revision 10-1; Effective January 15, 2010

If the hearing involves medical issues such as those concerning a diagnosis, an examining physician's report or a medical review team's decision, and if the hearing official considers it necessary to have a medical assessment other than that of the person involved in making the original decision, the hearings officer orders that medical assessment must be obtained at the operating agency's expense and made part of the record.

If the hearings officer requests an additional medical assessment, he will recess the hearing until the assessment is complete. Once the hearings officer receives the new medical assessment, he will mail a copy to all parties and schedule a time to reconvene the hearing. The reconvened hearing will focus on the additional medical assessment.

Revision 12-2; Effective January 20, 2012

1710 Decision Process — 1 TAC §357.5(c)(3) and §357.25(a)

Revision 11-4; Effective June 1, 2011

 

1711 Time Frames

Revision 11-4; Effective June 1, 2011

According to federal regulations, all appeal requests must be completed within 90-days from the request date (60 days for SNAP and Refugee Cash Assistance appeals).

The 90 calendar-day fair hearings clock (60 calendar days for SNAP and Refugee Cash Assistance) begins the day the client asks for an appeal. The hearings officer notifies the client of the date, time and place of the hearing, conducts the hearing and issues a decision. The hearings officer allows 10 calendar days for the worker (agency representative) to take action on a reversed decision on non-SNAP appeals.

Exceptions: Issuing some decisions may be delayed beyond these time periods. For example, the appellant may make one or more requests to reschedule the hearing appointment. (See 1723, Delays in Issuing a Decision – 1 TAC §357.23(a)(3), for appropriate processing and delay procedures.)

1720 Decisions

Revision 11-4; Effective June 1, 2011

After the hearing, the hearings officer:

• determines if the agency's or its designee's actions were in compliance with statutes, policies or procedures;
• carefully weighs the evidence presented in accordance with the appropriate standard or proof;
• renders a decision based on the evidence presented at the hearing;
• issues a timely written decision containing the purpose of the hearing, the legal authority, procedural history, findings of fact, relevant authorities, conclusions of law, a final order, a list of exhibits; and
• in THSteps cases, the decision includes a summary of the evidence, in accordance with the Alberto N lawsuit settlement agreement.

The hearings officer ensures the decision is sent to the appropriate parties to permit timely implementation. The hearings officer uploads the reversed nursing facility discharge hearing decisions to the Portal. Appeals Division state office staff will forward these decisions to appropriate nursing home regulatory staff in accordance with agency regulations.

1721 Components of a Hearing Decision

Revision 10-1; Effective January 15, 2010

The hearings officer prepares a written decision that includes:

• introduction;
• purpose of the fair hearing;
• legal authority;
• procedural history;
• findings of fact;
• conclusions of law; and
• final order.

A hearings officer issues a decision based on the evidence presented at the hearing by the agency representative, the agency witnesses, the appellant and the appellant's representative or witnesses. The decision states a determination of whether the agency followed program policy.

The decision by the hearings officer must be written in English, and HHSC provides a translated coversheet in Spanish for hearing decisions where a Spanish interpreter was used or when the hearing was conducted in Spanish. The cover sheet will include a short translated statement that describes the outcome of the hearing and instructs the appellant to call the hearings officer if he needs assistance to understand the decision. An appellant who indicates by telephone, in person or in writing that assistance is needed to understand the decision should receive an explanation of the hearing decision from bilingual personnel within a reasonable period of time.

1721.1 Signing the Hearings Decision

Revision 11-4; Effective June 1, 2011

All hearing decisions require the hearings officer's signature. When the hearings officer enters a dismiss or withdrawn decision in TIERS, Hearings and Appeals, the system generates a decision. However, these decisions also require a signature. Since the hearings officer has issued the decision, the administrative assistant may sign the decision for the hearings officer. The administrative assistant may sign by signing the hearings officer's name followed by the administrative assistant's initials or by signing the hearings officer's name followed with "by' and the administrative assistant's name.

1722 Hearings Covered by the Alberto N. Settlement

Revision 10-4; Effective July 16, 2010

The hearings officer prepares a written decision that includes:

• Ensure that benefits have been continued as required, especially if private duty nursing service hours are at issue.
• Issue a decision that includes a discussion section, which:
  • will be part of the Summary of Evidence;
  • contains a brief synopsis of each participant's testimony;
  • states the conclusions drawn from critical testimony; and
  • substantially conforms to the requirements of the sample fair hearing decision, attached as Exhibit B to the Partial Settlement Agreement. See Appendix IV, Partial Settlement Agreement, Exhibit B.
• Apply and articulate the appropriate medical necessity standard, which may include:
  • that the benefit or service will correct or ameliorate defects and physical or mental illnesses or conditions;
  • the standards set out in the (first) Partial Settlement Agreement and Modified Second Partial Settlement Agreement;
  • HHSC medical policy, for example, the Texas Medicaid Provider Procedures Manual; and
  • any other medical standards unique to the request for benefits or services, including accepted standards of medical practice.
• Include the age of the child in the decision.
• Provide the decision electronically to state office where it will be redacted, indexed and maintained by the hearings administrator.
• Maintain the hearing record in a separate cabinet along with an appropriate tracking document.

In addition, all decisions involving children less than 21 years of age and an issue related to durable medical equipment, private duty nursing, home health skilled nursing or personal care services will be read by the appropriate manager before issuance.

1723 Delays in Issuing a Decision — 1 TAC §357.23(a)(3)

Revision 14-4; Effective November 14, 2014

The HHSC Appeals Division has 90 days (60 days for SNAP) to schedule and conduct the hearing and to issue a decision. HHSC tracks all appeal requests for timeliness.

"Delay" is a term the HHSC Appeals Division uses to allow for time extensions in individual cases when:

• the hearings officer grants one or more continuances, and/or
• the worker extends the time allowed to carry out the directives of the hearings officer.

Delaying decisions in TANF and SNAP cases is permissible in accordance with a settlement agreement reached in the Villarreal lawsuit. HHSC has elected to apply such delays in issuing decisions to all fair hearing decisions.

The following delay codes are applicable in specified circumstances. The hearings officer can only use these codes before issuing a written decision.

1. An appellant, appellant's representative, the agency or agency attorney may ask for one or more continuances or reschedules (not to exceed 30 calendar days from the last scheduled hearing date) for a hearing.

•  
  • The delays can be up to 30 days. If the continuance hearing is less than or equal to 30 days, staff should enter only the exact number of days as a delay. TIERS will accept any entries, but staff should not enter additional delays even if the reset hearing date exceeds 30 days. If the reset hearing exceeds 30 days, enter 30 days.
  • A hearings officer must decide if there is good cause when the appellant asks for more than one continuance.
    
    Note: The delay start date on a continuance hearing is the date of the initial hearing, not the date the appellant asks for the continuance. For example, if the hearing date is Dec. 1, 2010, and the appellant asks for a continuance, start the delay on Dec. 1, 2010, and have 30 days from Dec. 1, 2010, to hold the hearing.
  • Staff can enter a delay of 30 days if the appellant asks for a continuance, but this does not mean HHSC has to schedule and hold the new hearing within 30 days of the initial hearing. For example, if the decision is due on Dec. 1, 2010, and the initial hearing date is Nov. 1, 2010, and the appellant asks for a continuance, HHSC does not have to schedule or hold the hearing on or before Dec. 1, 2010. Staff can enter a total of 30 days of delays, which will extend the due date of the decision to Dec. 31, 2010. As long as HHSC schedules the hearing so that the hearings officer can issue a decision by Dec. 31, 2010, it will be timely.
  • For reversed TANF decisions, staff can enter a delay of 30 days if the appellant asks for a continuance. This does not mean that HHSC has to schedule and hold the new hearing within 30 days of the initial hearing. For example, if the decision is due on Dec. 1, 2010, and the initial hearing date is Nov. 1, 2010, and the appellant asks for a continuance, HHSC does not have to schedule and hold the hearing on or before Dec. 1, 2010. Staff can enter 30 days of delays, which will extend the due date for the decision to Dec. 31, 2010.
• An appellant, appellant's representative, the agency or the agency's representative asks that the record remain open for a specific period of time after a hearing has been held.
• Circumstances occur that are beyond HHSC's control (for example, fire, flood, natural disasters). When using this delay code, the hearings officer should document the reason for the delay in the hearings folder.

1724 Dismissals — 1 TAC Section 357.19(b)

Revision 11-2; Effective February 14, 2011

 

1724.1 Appellant Did Not Appear Initial Dismissal

Revision 10-1; Effective January 15, 2010

If the appellant fails to appear at the scheduled hearing, dismiss the appeal. If the appellant calls to request a rescheduled hearing, inform the appellant of the requirement to submit a good cause statement in writing within 30 calendar days of the dismissal decision date.

1724.2 Determining Good Cause

Revision 10-1; Effective January 15, 2010

If the hearings office receives a good cause statement requesting a reopened appeal within 30 calendar days of the dismissal decision date, date stamp the statement and immediately route it to the hearings officer for review. The hearings officer must determine on a case-by-case basis whether good cause is established for the appellant's failure to appear at the scheduled hearing.

To constitute good cause for failure to appear, Appellant must demonstrate the failure was from circumstances that were not within his control. If the good cause statement shows that Appellant could have appeared but failed to do so, good cause is not established. The following reasons generally do not demonstrate good cause, but this list is not all-inclusive.

• The appellant received the notice of hearing, but misplaced it or forgot about the hearing.
• The appellant received the notice of hearing and failed to read it.
• The appellant had a conflicting appointment or obligation and did not attempt to obtain a postponement from the hearings office.
• The appellant or a loved one was ill and appellant did not attempt to obtain a postponement from the hearings office.
• The appellant did not receive the notice of hearing, because the appellant moved and did not notify the agency of the change of address.
• The appellant was not aware of the hearing, because the appellant did not check his mail or open the notice of hearing prior to the appointment.

1724.3 Action on Good Cause Statement

Revision 13-2; Effective October 2, 2013

The hearings officer must initiate one of the following actions within 10 calendar days of receipt of the appellant's good cause statement.

1. Schedule a Hearing If the written statement establishes good cause for the appellant's failure to appear at the scheduled hearing, schedule another hearing using Form H4803, Notice of Hearing. The reopen date will be the date the hearings office received the good cause statement.
   
   If the appellant appears for the hearing, the hearings officer includes in the decision's procedural history the detailed actions taken and that the original dismissal decision is set aside.
   
   If the appellant fails to appear at the rescheduled hearing, dismiss the open appeal using the cover letter and dismissal order in TIERS. The appellant may again submit a good cause statement within 30 calendar days of the dismissal decision date to request a reopened appeal. The hearings officer reviews the good cause statement and again initiates one of the three aforementioned actions within 10 calendar days of receipt. There is no limit on the number of times an appellant may submit a good cause statement, as long as the hearings officer continues to find good cause and reschedules a hearing.
2. Schedule and Conduct a Good Cause Hearing
   
   If the good cause statement does not contain sufficient or clear information that allows the hearings officer to determined if the appellant had good cause for failing to appear at the hearing, schedule a good cause hearing. Send the good cause hearing notice to the appellant, the agency representative and all other hearing participants listed on Form H4800, Fair Hearing Request Summary.
   
   Using the good cause hearing notice, the hearings officer notifies the appellant that either the appeal will be dismissed or a hearing will be held. The good cause hearing notice allows the hearings officer the option of handling the subsequent hearing in one of two ways — rescheduling the hearing to a later date and time, or proceeding with the hearing immediately after the good cause hearing.
   
   At the good cause hearing, the sole issue is whether the appellant's reason(s) for failing to appear resulted from circumstances beyond his control. If the hearings officer finds failure to appear was not caused by such circumstances, the hearings officer closes the hearing record and dismisses the appeal. A good cause hearing may be rescheduled because of extenuating circumstances and considered on a case-by-case basis.
   
   If good cause is established and a new appeal hearing is conducted, the hearings officer details these actions in the decision's procedural history and sets aside the original dismissal decision. The reopen date is the date the good cause statement was received by the hearings office.
3. Issue a Good Cause Dismissal
   
   If the good cause statement does not clearly establish the appellant had good cause for failing to appear at the scheduled hearing, the hearings officer issues a good cause dismissal.
4. Good Cause Statement Received after 30 Calendar Days
   
   If the appellant submits a good cause statement after the 30-day time period, send the appellant a letter within 10 calendar days of receipt by the hearings office. The letter informs the appellant that no further action will be taken on the appeal, because the good cause statement was submitted after the 30-day time period.

1724.4 Past 90-day Time Frame

Revision 11-4; Effective June 1, 2011

If the hearings officer receives a request for a fair hearing past the 90-day time frame, he sends a letter to the client asking for good cause for failing to appeal timely. After receiving the information, the hearings officer will review and determine if there was good cause for failing to appeal timely. If good cause is established, a hearing is scheduled. If good cause was not established, the hearings officer issues a decision dismissing the appeal request for want of jurisdiction. It is appropriate to schedule a pre-hearing conference to determine if there was good cause for the appellant's failure to request the appeal in a timely manner.

Exception: If the hearings officer receives a request for an over payment claim hearing past the 90-day time frame, a pre-hearing conference will be scheduled to determine good cause for the appellant's failure to request the fair hearing in a timely manner.

1725 Withdrawn Appeals — 1 TAC §357.19(c)

Revision 12-2; Effective January 20, 2012

Once an appeal is filed, only the appellant or his representative may withdraw the request. The appellant must make the request orally or in writing to the hearings officer or the local office and give the reason for requesting to withdraw.

1725.1 Oral Withdrawal Received During the Hearing

Revision 10-1; Effective January 15, 2010

If an appellant makes an oral request to withdraw during the hearing itself, the hearings officer should ensure the request is captured on the hearing recording, accept the request and issue a decision to show the appeal request was withdrawn.

1725.2 Reserved

Revision 12-2; Effective January 20, 2012

 

1725.3 If an Appellant Dies During the Appeal Process

Revision 11-1; Effective February 1, 2011

When an appellant dies during the appeal process, the legal representative of the decedent's estate must pursue the appeal, or the hearings officer may consider the appeal withdrawn.

1726 Reversed Appeals — 1 TAC §357.23(d)

Revision 10-4; Effective July 16, 2010

The hearings officer, following a hearing, reverses a decision of the agency or designee if the action or inaction is not supported by the evidence introduced at the hearing, in accordance with applicable statutes, policies or procedures. The agency may be instructed to issue retroactive payments or restored benefits in accordance with applicable rules, regulations and statutes.

If the hearings officer decides there is insufficient information to determine eligibility or benefit amount based on evidence presented during the hearing, he instructs the agency representative to obtain such information and make a redetermination in accordance with the hearings officer's order.

If changed circumstances were considered during the hearing, the hearings officer must make a finding of fact explaining why the appellant's changed circumstances were or were not considered.

1727 Sustained Appeals — 1 TAC §357.23(c) and (e)

Revision 10-4; Effective July 16, 2010

The hearings officer sustains a decision of the agency or designee if the action or inaction is supported by the evidence admitted at the hearing, and is in accordance with applicable statutes, policies or procedures.

If changed circumstances were considered during the hearing, the hearings officer must make a finding of fact explaining why the appellant's changed circumstances were or were not considered.

1728 Request to Reopen — 1 TAC §357.23(f)

Revision 14-4; Effective November 14, 2014

The hearings officer may reopen an appeal and reconsider the decision if, within 12 months of the decision date, the appellant offers evidence that:

• the hearings officer decides would have affected the outcome of the original decision,
• shows the original decision was not valid, and
• the appellant did not offer at the hearing.

The hearings officer must decide whether or not to reopen the appeal within 30 days from the date of the request. If the hearings officer decides to reopen the appeal, the decision-issuance time frames apply beginning with the date of the request to reopen. See 1711, Time Frames.

If the appellant offers information and asks to reopen the hearing, the agency must receive notice and have a chance to give input. Depending on the information the appellant offers, the hearings officer may need to schedule a hearing with notice to both parties.

If the appellant offers information after the hearings officer has issued the original decision and the hearings officer decides the information is new and that it would have affected the outcome of the decision, the hearings officer reopens the hearing. If the hearings officer reopens the hearing, he issues a new decision. If the hearings officer decides the information is not new evidence, he notifies the appellant in writing that he is denying the request to reopen and that the original decision remains in effect.

1729 Amended or Re-issued Decision — 1 TAC §357.23(g)

Revision 11-1; Effective February 1, 2011

The hearings officer has the authority to withdraw, revise and re-issue a decision within 20 calendar days following the original decision date if he becomes aware of an error of law or fact that would have affected the outcome of the decision for either side. The hearings officer does not have the authority to act 20 days after the decision was issued.

If program staff or appellant feel that the hearings officer committed an error of law or fact, staff may send a letter to the hearings officer and to the other parties within five business days of the date the decision was issued to allow the hearings officer sufficient time to re-issue a decision, if necessary.

The decision that is rendered must be identified as an amended decision. The procedural history should indicate the date the first decision was mailed and possibly the date the hearings officer became aware of the need to reconsider the decision.

An amended decision should be submitted to the hearings manager for review before issuance.

1730 Hearing Manager Responsibilities

Revision 11-2; Effective February 14, 2011

Managers have the responsibility and duty to ensure correct decisions are issued to the extent possible.

Managers are required to read the following types of decisions before they are issued:

• All decisions where the agency acted on the opinion of a regional attorney and the hearings officer's decision does not agree with that of the regional attorney.
• All decisions where the appellant is represented by legal counsel and the hearings officer is reversing the agency.
• Any other decisions that are potentially high profile.

Managers conduct quarterly readings of decisions issued by each hearings officer.

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.

1740 Decision Formats for Certain Decisions

Revision 11-2; Effective February 14, 2011

A decision is issued for every appeal requested. While all have some similarities there are some differences. Each format is described below with directions on when to use each.

1741 Decisions to Dismiss

Revision 11-2; Effective February 14, 2011

Decisions dismissing an appeal are used when the appellant fails to appear for the hearing or the issue on appeal is outside of the hearings officer's jurisdiction. The decision format includes sections on Legal Authority and the Final Order.

1742 Decisions to Withdraw

Revision 11-4; Effective June 1, 2011

There are two types of withdrawal decision formats.

The withdrawn-in favor of format is used when the agency resolved the issue on appeal in the appellant's favor.

The withdrawn-sustained format is used when the appellant decides to withdraw the request for an appeal without any additional action by program staff.

The withdrawn decision format includes sections on Legal Authority and the Final Order.

1743 Decisions to Sustain or Reverse

Revision 11-2; Effective February 14, 2011

The same format is used for both of these types of decisions and includes more detail about the basis for the hearings officer's determination. The format includes sections entitled Introduction, Purpose of the Fair Hearing, Legal Authority, Procedural History, Relevant Authorities, Summary of Evidence, Findings of Fact, Conclusions of Law and the Final Order.

1744 Sustained and Reversed Decisions for Albert N. or THSteps Appeals

Revision 11-2; Effective February 14, 2011

The same format as described in §1733 is used for both types of decisions and includes the same sections except it also includes a Discussion section. The Discussion section contains a brief synopsis of each participant's testimony and conclusions drawn from the critical points that were made.

1745 Decision to Uphold the Original Decision

Revision 11-2; Effective February 14, 2011

This decision format is used when an appellant presents information for good cause for not appearing for the hearing or when a hearings officer decides to reopen a hearing.

1746 Short Form for Reversed Decisions

Revision 11-2; Effective February 14, 2011

A short reversal format may be used when the agency representative admits that the agency made a mistake in deciding to take the action being appealed. The format includes only the Decision and the Final Order.

1750 Decision Routing

Revision 11-4; Effective June 1, 2011

Decisions should always be sent to the appellant, the appellant's representative, the agency representative, the agency representative's supervisor and Texas Workforce Solutions, if appropriate. The hearings officer may send the decision to others listed as Other Participants on Form H4800, Fair Hearing Request, as appropriate.

Staff are required to date, sign, e-mail to the agency, place in the agency mail for pick-up, and enter the decision in TIERS all in the same day.

Exception: Decisions processed after U.S. Postal Service mail pickup on Friday, or when Monday is a holiday, will be processed as follows:

• Decision should be dated the date it is rendered.
• Decision should be entered in TIERS the same date.
• Decision should be e-mailed to the agency the same date.
• Decision should be placed in the agency mail for pickup or processing no later than the following business day.

See Appendix III, Distribution Schedule, for more detail on distributing hearings decisions.

Hearings staff send a monthly report of the reversed nursing facility discharge appeals and copies of the decision to the DADS Consumer Rights and Services at CRSComplaints@dads.state.tx.us.

Revision 10-3; Effective May 21, 2010

1810 Responsibility of the Agency Representative for Implementing Decisions

Revision 10-3; Effective May 21, 2010

When the hearings officer reverses the agency action on appeal, the agency representative is required to implement the order and enter implementation data in the TIERS, Hearings and Appeals, Decision Implementation module.

The agency representative has 10 days from the date the decision was issued to implement the hearing decision. If additional information is needed, the agency representative will contact the appellant and pend the implementation process. Once the additional information is received, the agency representative has three business days to complete the implementation.

The agency representative implements the hearing decision and enters the implementation information in the TIERS Hearings and Appeals, Decision Implementation module, including delays. (For more information on delays, see Item 1723, Delays in Issuing a Decision – 1 TAC §357.23(a)(3).)

1811 Delays in Implementing a Hearings Decision

Revision 11-1; Effective February 1, 2011

The following delay codes are applicable in specific circumstances and can only be used by program staff after a hearing decision has been issued and the worker is delayed in responding to the directives of the hearing officer.

4. Circumstances beyond HHSC's control, such as fire, flood or other acts of nature. If D is used, the reason must be stated.
5. Additional information/verification was needed from the appellant, and the appellant agreed to cooperate.
6. Appellant refused to cooperate in providing additional information/verification.

Program staff enter delays in the TIERS Hearings and Appeal Module under Decision Implementation/Delays.

1820 Responsibility of the Agency Representative's Supervisor

Revision 10-1; Effective January 15, 2010

An alert is sent to the agency representative's supervisor via TIERS once the agency representative enters the implementation information in TIERS Hearings and Appeals, Decision Implementation module. Upon receipt of the alert, the agency representative supervisor must review and approve the agency representative's implementation actions.

Exception: DADS program staff not required to conduct a second level review.

Program staff have 10 days from the date on the hearing decision to implement the hearings officer's decision.

Revision 10-1; Effective January 15, 2010

1910 Confidential Material — 1 TAC §357.25(d)

Revision 10-1; Effective January 15, 2010

Information furnished in confidence by anyone to the HHSC and was used to make an eligibility determination may not be used to make a hearing decision unless it is shared with the appellant.

Example: During the eligibility determination process, Ms. Brown told her worker that she was not working and had no income. A neighbor contacted the eligibility worker and stated that Ms. Brown was working at the local Wal-Mart. The worker verified that Ms. Brown did indeed work at Wal-Mart and denied her application for assistance. At the hearing, the worker did not want to share the information received from the neighbor so the hearings officer may not consider the statement as evidence.

1920 Privileges — 1 TAC §357.25(d)

Revision 10-1; Effective January 15, 2010

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 clergy-person 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.

1930 Public Access to Decisions — 1 TAC §357.25(c)

Revision 10-1; Effective January 15, 2010

1931 Confidential Information

Revision 10-1; Effective January 15, 2010

• HHSC Appeals Division records and decisions are available for public inspection and copying, but are also 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.

1932 Disclosure of Hearings Recordings and Records

Revision 10-1; Effective January 15, 2010

• An appellant or authorized representative may record the hearing or request a copy of the 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 of age.

1940 Official Record — 1 TAC §357.25(a)

Revision 10-1; Effective January 15, 2010

The official record of the hearing includes the exhibits offered to the hearings officer, the exhibits admitted, the recording of the hearing, any briefs or memoranda filed in connection with the hearing, the hearings officer's decision and any items filed in connection with administrative review and the decision on administrative review.

1950 Record Retention –1 TAC §357.25(b)

Revision 10-1; Effective January 15, 2010

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

1960 Prohibition of Use of Information Regarding Alien Status

Revision 10-1; Effective January 15, 2010

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.