1200, Participant Rights, Roles and Responsibilities

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Revision 23-1; Effective July 31, 2023

1210 Hearings Officer

Revision 23-1; Effective July 31, 2023

1211 Hearings Officer's Powers, Duties and Responsibilities - 1 TAC Section 357.5

Revision 23-1; Effective July 31, 2023

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.

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 at the time the action was taken.

The hearings officer’s manager, at their discretion, may reassign the fair hearing to another officer.

Prior to the hearing, 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;
requires the attendance of an agency representative to explain and defend the agency action. The hearings officer may notify other parties of the hearing but cannot subpoena witnesses;
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.

During the hearing, the hearings officer:

makes the official recording of the hearing;
ensures that the appellant's and agency's rights are protected;
contacts an interpreter when needed;
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 to the extent possible. The hearings officer's recording is the official recording of the hearing.
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, an orderly hearing, and a clear record of the hearing; and
conducts the hearing in a way that makes the appellant feel most at ease but meets state and federal requirements.

1212 Limitation of Authority of Hearings Officers

Revision 23-1; Effective July 31, 2023

A hearings officer does not have the authority to determine if policy is contrary to law or unconstitutional. When an appellant or their legal representative alleges a policy is contrary to law or unconstitutional, the hearings officer should state that the hearing decision will be based on agency 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 1160, Obtaining a Legal Opinion or Clarification.

1220 Agency

Revision 23-1; Effective July 31, 2023

1221 Agency Responsibilities - 1 TAC Section 357.7

Revision 23-1; Effective July 31, 2023

The agency must:

accept and submit any appeal within five days of receipt;
notify the hearings officer, within five days of the notice of hearing date, of any scheduling conflicts;
ensure that copies of documents used to determine the agency action are provided to both the hearings officer and the appellant within 10 days of the date the appeal is received;
appear at the scheduled hearing at the designated time;
explain and defend the decision or action taken regarding the appellant, including the internal appeal; and
explain the decision made at the External Medical Review (EMR), if applicable.

Additionally, for managed care cases, the agency must:

notify the hearings administrator if a managed care organization is submitting an appeal which has been determined to be expedited; and
ensure that copies of documents used to determine the agency action are provided to both the hearings officer and the appellant immediately for expedited cases.

1230 Appellant

Revision 23-1; Effective July 31, 2023

1231 Appellant’s Rights - 1 TAC Section 357.13(d)

Revision 23-1; Effective July 31, 2023

The appellant and their representative have the right 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, but not limited to, the appellant's representative;
bring witnesses;
present information about all pertinent facts and circumstances;
present arguments or address anything about the case without undue interference;
confront and cross-examine adverse witnesses; and
submit documentary evidence to the hearings officer before, during, or after the hearing as allowed by the hearings officer.

1232 Appellant’s Responsibilities - 1 TAC Section 357.13(e)

Revision 23-1; Effective July 31, 2023

The appellant or the appellant’s representative is responsible for:

notifying any witnesses they would like to participate, unless they notify the hearings officer of additional witnesses when the hearing is requested;
providing written authorization for someone they want to represent them in the hearing;
notifying the hearings officer, prior to the hearing, if they will be unable to attend or would like to reschedule;
submitting any evidence to the hearings office which they would like to offer, in accordance with the instructions on the notice of hearing;
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.

1240 Attorney- Involved Hearings

Revision 23-1; Effective July 31, 2023

For an attorney to take any action on behalf of an appellant, the attorney must first demonstrate, either through verbal authorization or written documentation, that the appellant agrees to the representation. Evaluating a case to determine if legal representation will be provided does not grant an attorney authority to take any action on behalf of the appellant or to request the release of information.

From the initiation of the fair hearing request:

The hearings officer will email the attorney, or attorneys, involved, providing them with three potential dates, corresponding timeslots, and initial hearing length. The attorney(s) will have three business days to provide a response. If a response is not provided within this timeframe, the hearings officer will schedule the hearing based on their docket availability.

After the initial hearing has been scheduled:

The hearings officer will automatically grant a continuance and email the attorney, or attorneys involved, providing them with three potential dates, corresponding timeslots, and initial hearing length. The attorneys will have two business days to provide a response. If a response is not provided within this timeframe, the hearings officer will schedule the hearing based on their docket availability.

Regardless of when attorneys become involved in a hearing, once the hearings officer provides the initial outreach with the three potential dates for the hearing, it is the attorney’s responsibility to agree to a date and time and provide a response to the hearings officer. Additionally, the parties must exchange evidentiary documents and provide copies to the hearings officer by a certain date.

If the attorneys cannot agree upon a date for the hearing, the hearings officer will set one for them.

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 consider and a time limit for notifying the hearings officer of the mutually agreed upon date for the hearing.

Continuances may be granted when good cause exists. However, continuances should not lead to postponing a hearing for an unreasonably long period of time.

It is strongly encouraged that attorneys provide their 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.

Attorneys acting in a non-legal capacity should be placed under oath when testifying. Attorneys acting in a legal capacity are not sworn in.

1250 Media

Revision 23-1; Effective July 31, 2023

Media representatives, including television, radio, and newspaper reporters, may not attend hearings, regardless of whether invited by the appellant.

If a media representative appears at a hearing, the hearings officer should instruct them to leave. Hearings officers should notify management if this occurs.

1260 Interpreters - 1 TAC Section 357.21

Revision 23-1; Effective July 31, 2023

1261 Right to Request an Interpreter

Revision 23-1; Effective July 31, 2023

When an appellant requests a fair hearing, agency staff create an appeal in the Texas Integrated Eligibility Redesign System (TIERS) Hearings and Appeal module, which generates Form H4800, Fair Hearing Request Summary. This form includes a space to indicate whether an interpreter is needed for the hearing.

Form H4805, Fair Hearing Procedures, 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 or she 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.

The hearings officer should not serve as interpreter during a hearing.

1262 Determination of Necessity for Interpreter

Revision 23-1; Effective July 31, 2023

The hearings officer determines the need for an interpreter on a case-by-case basis.

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 must be stated on the record.

However, if all parties request for or agree that an interpreter is needed, it is the hearings officer’s responsibility to accommodate the request.

1263 LEP Interpreters

Revision 23-1; Effective July 31, 2023

HHSC provides an interpreter to applicants, clients and witnesses who have bona fide language barriers to ensure that they will be able to participate 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.

Certified interpreters are required for SNAP appellants who have limited English proficiency and speak Spanish.

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.

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

1264 Sign Language Interpreters - 1 TAC Section 357.21(b)

Revision 23-1; Effective July 31, 2023

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 submit Form HHSC-OPS004, HHSC Request for Sign Language and Oral Interpreting Services, at least 48 hours before the hearing appointment.

1265 Requirements for Interpreters

Revision 23-1; Effective July 31, 2023

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.

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.

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 more slowly or clearly, 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 hearings 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.

1266 Procedures for Hearings Officers Related to Interpreters

Revision 23-1; Effective July 31, 2023

1266.1 The Role of the Interpreter

Revision 23-1; Effective July 31, 2023

The hearings officer must explain the role of the interpreter to all parties before the hearing. The explanation is provided in English and the appellant’s primary language.

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

communicates effectively with all parties and witnesses;
takes the interpreter's oath (the hearings 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 neutral party and has nothing to gain or lose due to the hearing decision on the appeal.

1266.2 Interpreter Oaths or Affirmations

Revision 23-1; Effective July 31, 2023

The hearings officer will administer the interpreter oath to the interpreter during the hearing. The interpreter must affirm the oath to continue interpreting the hearing.

1266.3 Curing Inaccuracies

Revision 23-1; Effective July 31, 2023

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

1267 Complaints Regarding Quality of Interpretation

Revision 23-1; Effective July 31, 2023

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

addresses the objection or complaint concerning the quality of the interpretation including a request to rehear the case; and
may provide a new interpreter.