1400, Scheduling the Hearing

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.