1500, The Hearing

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.