1700, Decisions

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.