No. 42927 (Amendment): Rule R986-100. Employment Support Programs

(Amendment)

DAR File No.: 42927
Filed: 05/17/2018 09:42:34 AM

RULE ANALYSIS

Purpose of the rule or reason for the change:

The purpose of these proposed rule changes is to revise the procedures for administrative disqualification hearings (ADHs) in the context of the Supplemental Nutrition Assistance Program (SNAP) in response to federal audit findings, and to clarify existing procedural provisions to bring them better into line with Department of Workforce Services (Department) policy and practice.

Summary of the rule or change:

In accordance with Sections 35A-1-103 and 35A-3-103, the Department administers SNAP in accordance with federal statutes (7 U.S.C. 2011 et seq.) and regulations (including, the most relevant for these proposed rule changes, 7 CFR Part 273). The Department's responsibility for SNAP administration includes determining applicant eligibility, assessing overpayments and disqualifications from SNAP, and providing appeal hearings related to these matters. On, or about, 08/24/2017, the United States Department of Agriculture's Food and Nutrition Service (FNS), which regulates the state agencies that administer SNAP, issued findings stating that the Department's hearing procedures for persons facing potential disqualification from SNAP due to an intentional program violation (IPV) were not in compliance with federal requirements. Specifically, FNS determined that the Department is required to hold a live ADH for each person accused of an IPV prior to imposing a disqualification from SNAP, regardless of whether the person has requested a hearing. These proposed rule changes address the FNS findings by creating separate hearing procedures for ADHs and making clear that, unlike other types of public assistance hearings, a live ADH is held for every IPV, even if the person accused of the IPV does not request it. In connection with reviewing and amending the hearing procedures to address the FNS findings, the Department has undertaken a broader review of the general public assistance hearing rules with an eye toward simplifying hearing procedures for clients, Department personnel, and other affected persons. Accordingly, these proposed rule changes contain various technical changes intended to clarify existing hearing procedures and remove redundancies and unnecessary matters. The Department has specific authority to make rules to implement these changes under Sections 35A-1-104, 35A-1-302, 35A-1-303, 35A-1-306, 35A-3-103, 35A-3-111, 35A-3-302, 35A-3-603, and 35A-3-604.

Statutory or constitutional authorization for this rule:

• Section 35A-1-103
• 7 U.S.C. 2011 et seq.
• 7 CFR Part 273
• Section 35A-3-103

Anticipated cost or savings to:

the state budget:

Because of the need to hold separate ADHs, these proposed rule changes are expected to increase the Department's administrative workload. Accordingly, the Department has hired three new employees, resulting in a total added cost of approximately $107,000 annually. No other aspect of these proposed rule changes is expected to cause costs or savings to the state budget because the remaining changes merely clarify and formalize existing Department practices and procedures.

local governments:

No costs or savings are anticipated to local governments because SNAP and the other public assistance programs affected by these proposed rule changes are state-level programs that do not rely on local governments for their funding, administration, or enforcement.

small businesses:

No costs or savings are anticipated to small businesses because these proposed rule changes do not make substantive changes to any provisions relevant to types of hearings involving small businesses. The Department has considered whether these proposed rule changes will have a measurable negative fiscal impact on small businesses and has determined that these proposed rule changes will not have a negative fiscal impact.

persons other than small businesses, businesses, or local governmental entities:

No costs or savings to persons other than small businesses, businesses, or local government entities are anticipated from these proposed rule changes because the changes in hearing procedures will not substantively affect the legal standards governing a claimant's eligibility for public assistance, the imposition of overpayments or other sanctions, or any other aspect of an applicant's ability to receive public assistance.

Compliance costs for affected persons:

No compliance costs are expected for any affected persons because these proposed rule changes do not change any compliance or reporting requirements for applicants for public assistance.

Comments by the department head on the fiscal impact the rule may have on businesses:

After a thorough analysis, it was determined that these proposed rule changes will not result in a fiscal impact to businesses.

Jon Pierpont, Executive Director

The full text of this rule may be inspected, during regular business hours, at the Office of Administrative Rules, or at:

Workforce Services
Employment Development
140 E 300 S
SALT LAKE CITY, UT 84111-2333

Direct questions regarding this rule to:

• Nathan White at the above address, by phone at 801-526-9647, by FAX at , or by Internet E-mail at [e-mail]

Interested persons may present their views on this rule by submitting written comments to the address above no later than 5:00 p.m. on:

07/16/2018

This rule may become effective on:

07/23/2018

Authorized by:

Jon Pierpont, Executive Director

RULE TEXT

Appendix 1: Regulatory Impact Summary Table*

Fiscal Costs

FY 2019

FY 2020

FY 2021

State Government

$107,000

$107,000

$107,000

Local Government

$0

$0

$0

Small Businesses

$0

$0

$0

Non-Small Businesses

$0

$0

$0

Other Persons

$0

$0

$0

Total Fiscal Costs:

$107,000

$107,000

$107,000

Fiscal Benefits

State Government

$0

$0

$0

Local Government

$0

$0

$0

Small Businesses

$0

$0

$0

Non-Small Businesses

$0

$0

$0

Other Persons

$0

$0

$0

Total Fiscal Benefits:

$0

$0

$0

Net Fiscal Benefits:

-$107,000

-$107,000

-$107,000

 

*This table only includes fiscal impacts that could be measured. If there are inestimable fiscal impacts, they will not be included in this table. Inestimable impacts for State Government, Local Government, Small Businesses and Other Persons are described above. Inestimable impacts for Non - Small Businesses are described below.

 

Appendix 2: Regulatory Impact to Non - Small Businesses

After a thorough analysis, it was determined that this proposed rule will not result in a fiscal impact to businesses.

 

 

R986. Workforce Services, Employment Development.

R986-100. Employment Support Programs.

R986-100-101. Authority.

(1) The legal authority for these rules and for the Department of Workforce Services to carry out its responsibilities is found in Sections 35A-1-104, 35A-1-302, 35A-1-303, 35A-1-306,[and] 35A-3-103, 35A-3-111, 35A-3-302, 35A-3-603, and 35A-3-604.

(2) If any applicable federal law or regulation conflicts with these rules, the federal law or regulation is controlling.

 

R986-100-102. Scope.

(1) These rules establish standards for the administration of the following programs, for the collection of overpayments as defined in 35A-3-602(7) and/or disqualifications from any public assistance program provided under a state or federally funded benefit program;

(a) Supplemental Nutrition Assistance Program (SNAP)

(b) Family Employment Program (FEP)

(c) Family Employment Program Two Parent (FEPTP)

(d) Refugee Resettlement Program (RRP)

(e) Working Toward Employment (WTE)

(f) General Assistance (GA)

(g) Child Care Assistance (CC)

(h) Emergency Assistance Program (EA)

(i) Adoption Assistance Program (AA)

(j) Activities funded with TANF monies

(2) The rules in the 100 section (R986-100 et seq.) apply to all programs listed above unless a more specific rule applies. Additional rules which apply to each specific program can be found in the section number assigned for that program. Nothing in R986 et seq. is intended to apply to Unemployment Insurance.

 

R986-100-116. Overpayments.

(1) A client is responsible for repaying any overpayment for any program listed in R986-100-102 regardless of who was at fault in creating the overpayment.

(2) Underpayments may be used to offset an overpayment for the same program.

(3) If a change is not reported as required by R986-100-113 it may result in an overpayment.

(4) The Department will collect overpayments for all programs listed in R986-100-102 as provided by federal regulation for SNAP unless otherwise noted in this rule or inconsistent with federal regulations specific to those other programs.

(5) This rule and R986-100-117 to -135[will] apply to overpayments determined under contract with the Department of Health unless a Department of Health rule states otherwise.

(6) If an obligor has more than one overpayment account and does not tell the Department which account to credit, the Department will make that determination.

 

R986-100-117. Disqualification Periods And Civil Penalties For [ Fraud ( ]Intentional Program Violations[ or ] ( IPVs).

(1) [Any person, including a child care provider, who is at fault in obtaining or attempting to obtain, an overpayment of assistance, as defined in Section 35A-3-602 from any of the programs listed in R986-100-102 or otherwise intentionally breaches any program rule either personally or through a representative is guilty of an intentional program violation (IPV)]An Intentional Program Violation (IPV) occurs when a person, either personally or through a representative, intentionally, knowingly, or recklessly (as those terms are defined in Utah Code Ann. Section 76-2-103 and as shown by clear and convincing evidence) violates a program rule, or helps another person violate a program rule, in an attempt to obtain, maintain, increase, or prevent the decrease or termination of public assistance payment(s) from any of the programs listed in R986-100-102. Acts which may constitute an IPV include but are not limited to:

(a) [knowingly ]making false or misleading statements;

(b) misrepresenting, concealing, or withholding facts or information;

(c) posing as someone else;

(d) [knowingly ]taking, using or accepting a public assistance payment the [party]person knew[or should have known] they were not eligible to receive or not reporting the receipt of a public assistance payment the [individual]person knew[or should have known] they were not eligible to receive;

(e) not reporting a material change as required by and in accordance with these rules;

(f) committing an act intended to mislead, misrepresent, conceal or withhold facts or propound a falsity;[or]

(g) accessing TANF public assistance funds through an electronic benefit transfer, including through an automated teller machine or point-of-sale device, in an establishment in the state that;

(i) exclusively or primarily sells intoxicating liquor,

(ii) allows gambling or gaming, or

(iii) provides adult-oriented entertainment where performers disrobe or perform unclothed ; or[.]

(h) committing any act that constitutes a violation of federal or state law for the purpose of using, presenting, transferring, acquiring, receiving, possessing, or trafficking SNAP or EBT cards.

(2) [An IPV occurs when a person commits any of the above acts in an attempt to obtain, maintain, increase or prevent the decrease or termination of any public assistance payment(s).

(3) When the Department determines or receives notice from a court that fraud or an IPV has occurred, the client is disqualified from receiving assistance of the same type for the time period as set forth in rule, statute or federal regulation.]When an IPV is alleged, the Department may:

(a) Refer the case for criminal prosecution;

(b) In SNAP cases, refer the case for an administrative disqualification hearing (ADH); or

(c) In non-SNAP cases, issue an initial decision finding the person committed an IPV, which the person may appeal via the fair hearing process set forth in R986-100-123 to -135.

(3) The Department may not disqualify a person from SNAP unless an ADH has been held or the person has been criminally convicted. The Department may not make concurrent referrals for an ADH and criminal prosecution. If a SNAP case referred for criminal prosecution is dismissed or referred back to the Department without prosecution, the Department may refer the case for an ADH.

(4) A person who is found liable for committing an IPV in either an administrative or criminal proceeding shall:

(a) In the case of any program other than SNAP, be assessed a civil penalty of 10% of the amount of the overpayment; and

(b) In the case of any program other than Medicaid, be disqualified from receiving assistance from the program(s) at issue for a period of:

(i) 12 months for a first offense;

(ii) 24 months for a second offense; and

(iii) Permanently for a third offense.

([4]c) Disqualifications run concurrently.

(d) A disqualification applies only to the person(s) found to have committed an IPV. However, all adult members of the relevant household at the time the overpayment occurred shall be responsible for repaying the overpayment.

(e) Notwithstanding the foregoing, if a more specific provision of federal or state law provides for different sanctions for committing an act that constitutes an IPV, that provision is controlling.

(5) All income and assets of a person who has been disqualified from assistance for an IPV continue to be counted and affect the eligibility and assistance amount of the household assistance unit in which the person resides.

(6) If an individual has been disqualified in another state, the disqualification period for the IPV in that state will apply in Utah provided the act which resulted in the disqualification would have resulted in a disqualification had it occurred in Utah. If the individual has been disqualified in another state for an act which would have led to disqualification had it occurred in Utah and is found to have committed an IPV in Utah, the prior periods of disqualification in any other state count toward determining the length of disqualification in Utah.

(7) The [client]person being disqualified will be notified that a disqualification period has been determined. The disqualification period shall begin no later than the second month which follows the date the [client]person being disqualified receives written notice of the disqualification and continues in consecutive months until the disqualification period has expired. The Department will also provide written notice to any remaining household members informing them of the allotment they will receive during the disqualification period.

(8) Nothing in these rules is intended to limit or prevent a criminal prosecution for fraud based on the same facts used to determine the IPV.

 

R986-100-118. Additional [Penalty for a Client Who Intentionally Misrepresents Residence]Disqualification Penalties.

(1) A person found to have made a fraudulent statement or representation with respect to the identity or place of residence of an individual in order to receive multiple SNAP benefits simultaneously shall be ineligible to participate in SNAP for a period of ten years.

(2) A person found by a federal, state, or local court to have used or received SNAP benefits in a transaction involving the sale of firearms, ammunition, or explosives shall be permanently ineligible to participate in SNAP.

(3) A person convicted in federal, state, or local court of having trafficked SNAP benefits in an aggregate amount of $500 or more shall be permanently ineligible to participate in SNAP.

(4) In all other cases involving SNAP or TANF funds, a[A] person who has been convicted in federal or state court of having made a fraudulent statement or representation with respect to the place of residence in order to receive assistance simultaneously from two or more states is disqualified from receiving assistance for any and all programs listed in R986-100-102 above, for a period of 10 years. This applies even if Utah was not one of the states involved in the original fraudulent misrepresentation.

 

[R986-100-118a. Improper Access of Public Assistance Benefits.

(1) A client may not access assistance payments through an electronic benefit transfer, including through an automated teller machine or point-of-sale device, in an establishment in the state that;

(a) exclusively or primarily sells intoxicating liquor,

(b) allows gambling or gaming, or

(c) provides adult-oriented entertainment where performers disrobe or perform unclothed.

(2) Violation of the provisions of subsection (1) of this section will result in;

(a) a warning letter for the first offense,

(b) a one month disqualification for the second offense, and

(c) a three month disqualification for the third and all subsequent offenses.

]

R986-100-121. Agency Conferences.

(1) Agency conferences are used to resolve disputes between the client and Department staff only in cases involving denial of expedited SNAP assistance.

(2) [Clients or Department staff may request an agency conference at any time to resolve a dispute regarding a denial or reduction of assistance.

(3) ]Clients may have an authorized representative attend the agency conference.

(3[4]) An agency conference will be attended by the client's employment counselor and the counselor's supervisor unless the client or the supervisor request that the employment counselor not attend the conference.

(4[5]) If an agency conference has previously been held on the same dispute, the Department may decline to hold the requested conference if, in the judgment of the employment counselor's supervisor, it will not result in the resolution of the dispute.

(5[6]) If the Department requests the agency conference and the client fails to respond, attend or otherwise cooperate in this process, documentation in the case file of attempts by the staff to follow these steps will be considered as compliance with the requirement to attempt to resolve the dispute.

(6[7]) An agency conference may be held after a client has made a request for hearing in an effort to resolve the dispute. If so, the client must be notified that failure to participate or failure to resolve the dispute at the agency conference will not affect the client's right to proceed with the hearing.

 

R986-100-122. Advance Notice of Department Action.

(1) Except as provided in (2) below or otherwise set forth by rule, [clients]interested persons will be notified in writing when a decision concerning eligibility, amount of assistance payment or action on the part of the Department which affects the [client's]interested person's eligibility or amount of assistance has been made. Notice will be sent prior to the effective date of any action to reduce or terminate assistance payments. The Department will send advance notice of its intent to collect overpayments or to disqualify [a household member]an interested person.

(2) Except for overpayments, advance notice is not required when:

(a) the [client]interested person requests in writing that the case be closed;

(b) [the]a client has been admitted to an institution under governmental administrative supervision;

(c) [the]a client has been placed in skilled nursing care, intermediate care, or long-term hospitalization;

(d) the [client's]interested person's whereabouts are unknown and mail sent to the [client]interested person has been returned by the post office with no forwarding address;

(e) it has been determined the [client]interested person is receiving public assistance in another state;

(f) a child in [the]a household has been removed from the home by court order or by voluntary relinquishment;

(g) a special allowance provided for a specific period is ended and the [client]interested person was informed in writing at the time the allowance began that it would terminate at the end of the specified period;

(h) a household member has been disqualified for an IPV in accordance with 7 CFR 273.16, or the benefits of the remaining household members are reduced or terminated to reflect the disqualification of that household member;

(i) the Department has received factual information confirming the death of [a client or payee]the interested person if there is no other relative able to serve as a new payee;

(j) the [client's]relevant certification period has expired;

(k) the action to terminate assistance is based on the expiration of the time limits imposed by the program;

(l) the [client]interested person has provided information to the Department, or the Department has information obtained from another reliable source, that the [client]interested person is not eligible or that payment should be reduced or terminated;

(m) the Department determines that the [client]interested person willfully withheld information or;

(n) when payment of financial assistance is made after performance under R986-200-215 and R986-400-454 no advance notice is needed when performance requirements are not met.

(3) For SNAP recipients and recipients of assistance under R986-300, no action will be taken until ten days after notice was sent unless one of the exceptions in (2)(a) through (k) above apply.

(4) Notice is complete if sent to the [client's]interested person's last known address. If notice is sent to the [client's]interested person's last known address and the notice is returned by the post office or electronically with no forwarding address, the notice will be considered to have been properly served. If [a client]an interested person elects to receive correspondence electronically, notice is complete when sent to the [client's]interested person's last known email address [and/]or posted to the [client's]interested person's Department sponsored web page.

 

R986-100-123. The Right To a Hearing and How to Request a Hearing.

(1) [A client]An interested person has the right to a review of an adverse Department action by requesting a fair hearing before an ALJ.

(2) In cases where the Department sends notice of its intent to take action to collect an alleged overpayment but there is no alleged SNAP overpayment, the [client]interested person must request a hearing in writing or orally within 30 days of the date of notice of agency action. In all other cases, the [client]interested person must request a hearing in writing or orally within 90 days of the date of the notice of agency action with which the [client]interested person disagrees.

(3) Only a clear expression by the [client]interested person, whether orally or in writing, to the effect that the [client]interested person wants an opportunity to present his or her case is required.

(4) The request for a hearing can be made [at the local office or the Division of Adjudication]by contacting the Department.

(5) If the [client]interested person disagrees with the level of SNAP benefits paid or payable, the [client]interested person can request a hearing within the certification period, even if that is longer than 90 days.

(6) If a request for restoration of lost SNAP benefits is made within one year of the loss of benefits [a client]an interested person may request a hearing within 90 days of the date of the denial of restoration.

(7) [In the case of an overpayment and/or IPV the obligor]An interested person may contact the [presiding officer]Department and attempt to resolve the dispute. If the dispute cannot be resolved, the [obligor]interested person may still request a hearing provided it is filed within the time limit provided in the notice of agency action.

(8) In cases not involving an overpayment or disqualification, if the interested person does not submit a timely appeal, the Department decision is final.

 

R986-100-124. How Hearings Are Conducted.

(1) Hearings are held at the state level and not at the local level.

(2) Where not inconsistent with federal law or regulation governing hearing procedure, the Department will follow the Utah Administrative Procedures Act.

(3) Hearings for all programs listed in R986-100-102 and for overpayments and IPVs in Section 35A-3-601 et seq. are declared to be informal.

(4) Hearings are conducted by an ALJ or a Hearing Officer in the Division of Adjudication. A Hearing Officer has all of the same rights, duties, powers and responsibilities as an ALJ under these rules and the terms are interchangeable.

(5) Hearings are scheduled as telephone hearings. Every party wishing to participate in the telephone hearing must call the Division of Adjudication [before the hearing and provide a telephone number where the party can be reached ]at the time of the hearing. If the [client]party fails to call in[advance,] as required by the notice of hearing, the appeal will be dismissed. If a party wishes to have the ALJ call them at the start of the hearing, the party must call the Department and make arrangements to that effect prior to the hearing.

(6) If a [client]party requires an in-person hearing, the [client]party must contact an ALJ and request that the hearing be scheduled as an in-person hearing. The request should be made sufficiently in advance of the hearing so that all other parties may be given notice of the change in hearing type and the opportunity to appear in person also. Requests will only be granted if the [client]party can show that an in-person hearing is necessary to accommodate a special need or if the ALJ deems an in-person hearing is necessary to ensure an orderly and fair hearing which meets due process requirements. If the ALJ grants the request, all parties will be informed that the hearing will be conducted in person. Even if the hearing is scheduled as an in-person hearing, a party may elect to participate by telephone. In-person hearings are held in the office of the [Appeals Unit]Division of Adjudication unless the ALJ determines that another location is more appropriate. A [client can]party or witness may participate from the local Employment Center.

(7) the Department is not responsible for any travel costs incurred by [the client]any party or witness in attending an in-person hearing.

(8) the Division of Adjudication will permit collect calls from parties and their witnesses participating in telephone hearings.

 

R986-100-125. When a [Client]Party or Witness Needs an Interpreter at the Hearing.

(1) If a [client]party or witness notifies the Department that an interpreter is needed at the time the request for hearing is made, the Department will arrange for an interpreter at no cost to the [client]party or witness.

(2) If an interpreter is needed at the hearing[by a client or the client's witness(es)], the [client]party may arrange for an interpreter to be present at the hearing who is an adult with fluent ability to understand and speak English and the language of the person testifying, or notify the Division of Adjudication at the time the appeal is filed that assistance is required in arranging for an interpreter.

 

R986-100-126. Procedure For Use of an Interpreter.

(1) The ALJ will be assured that the interpreter:

(a) understands the English language; and

(b) understands the language of the [client]party or witness for whom the interpreter will interpret.

(2) The ALJ will instruct the interpreter to interpret, word for word, and not summarize, add, change, or delete any of the testimony or questions.

(3) The interpreter will be sworn to truthfully and accurately translate all statements made, all questions asked, and all answers given.

(4) The interpreter will be instructed to translate to the [client]party the explanation of the hearing procedures as provided by the ALJ.

 

R986-100-127. Notice of Hearing.

(1) All interested [parties ]will be notified by mail at least 10 days prior to the hearing.

(2) Advance written notice of the hearing can be waived if the [client]party and Department agree.

(3) The notice shall contain:

(a) the time, date, and place, or conditions of the hearing. If the hearing is to be by telephone, the notice will provide the number for the [client]party to call and a notice that the [client]party can call the number collect;

(b) the legal issues or reason for the hearing;

(c) the consequences of not appearing;

(d) the procedures and limitations for requesting rescheduling; and

(e) notification that the [client]party can examine the case file prior to the hearing.

(4) If a [client]party has designated a person or professional organization as the [client's]party's agent, notice of the hearing will be sent to that agent. It will be considered that the [client]party has been given notice when notice is sent to the agent.

(5) When a new issue arises during the hearing or under other unusual circumstances, advance written notice may be waived, if the Department and [the client]all parties agree, after a full verbal explanation of the issues and potential results.

(6) [The client]Each party must notify any representatives, including counsel and witnesses, of the time and place of the hearing and make necessary arrangements for their participation.

(7) The notice of hearing will be translated, either in writing or verbally, for certain clients participating in the RRP program in accordance with RRP regulations.

 

R986-100-128. Hearing Procedure.

(1) Hearings are not open to the public.

(2) A [client]party may be represented at the hearing. The [client]party may also invite friends or relatives to attend as space permits and consistent with the orderly progress of the hearing.

(3) Representatives from the Department or other state agencies may be present.

(4) All hearings will be conducted informally and in such manner as to protect the rights of the parties. The hearing may be recorded.

(5) All issues relevant to the appeal will be considered and decided upon.

(6) The decision of the ALJ will be based solely on the testimony and evidence presented at the hearing.

(7) All parties may testify, present evidence or comment on the issues.

(8) All testimony of the parties and witnesses will be given under oath or affirmation.

(9) Any party to an appeal will be given an adequate opportunity to be heard and present any pertinent evidence of probative value and to know and rebut by cross-examination or otherwise any other evidence submitted.

(10) The ALJ will direct the order of testimony and rule on the admissibility of evidence.

(11) Oral or written evidence of any nature, whether or not conforming to the legal rules of evidence including hearsay, may be accepted and will be given its proper weight.

(12) Official records of the Department, including reports submitted in connection with any program administered by the Department or other State agency may be included in the record.

(13) The ALJ may request the presentation of and may take such additional evidence as the ALJ deems necessary.

(14) The parties, with consent of the ALJ, may stipulate to the facts involved. The ALJ may decide the issues on the basis of such facts or may set the matter for hearing and take such further evidence as deemed necessary to determine the issues.

(15) The ALJ may require portions of the evidence be transcribed as necessary for rendering a decision.

(16) Unless [the client]an interested person requests a continuance, the decision of the ALJ will be issued within 60 days of the date on which the [client]interested person requests a hearing.

(17) A decision of the ALJ which results in a reversal of the Department decision shall be complied with within 10 days of the issuance of the decision.

 

R986-100-129. Rescheduling or Continuance of Hearing.

(1) The ALJ may adjourn, reschedule, continue or reopen a hearing on the ALJ's own motion or on the motion of [the client or the Department.]any party. A continuance shall be for no more than 30 days.

(2) If a party knows in advance of the hearing that they will be unable to proceed with or participate in the hearing on the date or time scheduled, the party must request that the hearing be rescheduled or continued to another day or time.

(a) The request must be received prior to the hearing.

(b) The request must be made orally or in writing to the [ALJ who is scheduled to hear the case]Division of Adjudication. If the request is not received prior to the hearing, the party must show cause for failing to make a timely request.

(c) After a party has already had one hearing rescheduled, [T]the party making the request must show cause for the request.

(d) Normally, a party will not be granted more than one request for a continuance.

(3) The rescheduled hearing must be held within 30 days of the original hearing date.

 

R986-100-130. Default Order [ or Dismissal ]for Failure to Participate.

(1) [The Department will issue a default order if an obligor in an IPV or IPV overpayment case]Except in cases of SNAP IPVs as stated in R986-100-136, if a person assessed an overpayment or other sanction fails to participate in the administrative process , the Department shall issue a default order confirming the overpayment and any other sanctions and shall move to collect any overpayment by all legal means. Participation [for an obligor ]means:

(a) signing and returning to the Department an approved stipulation for repayment and making all of the payments as agreed,

(b) requesting and participating in a hearing, or

(c) paying the overpayment in full.

(2) If a hearing has been scheduled at the request of [a client or an obligor in a case not involving an IPV]an interested person and the [client or obligor]interested person fails to appear at or participate in the hearing, either [in person]personally or through a representative, the ALJ will, unless a continuance or rescheduling has been requested, issue a default order dismiss ing the request for a fair hearing. A default order has the effect of upholding the initial Department decision.

(3) A default order will be based on the record and best evidence available at the time of the order.

 

R986-100-131. Setting Aside A Default or [Dismissal and/or]Reopening the Hearing After the Hearing Has Been Concluded.

(1) [Any party who fails to participate personally or by authorized representative as defined in R986-100-130]If a default order is issued, an adversely affected party may request that the default order [or dismissal ]be set aside and a hearing or a new hearing be scheduled. If a party failed to participate in a hearing but no decision has yet been issued, the party may request that the hearing be reopened.

(2) The request [must be in writing, must set forth the reason for the request and must be mailed, faxed or delivered to the ALJ or presiding officer who issued the default order or dismissal within ten days of the issuance of the default or dismissal]may be made orally or in writing as set forth in R986-100-123. A request to set aside a default order must be made within thirty days of the issuance of the default order. A request to reopen must be made within thirty days of the hearing date. If a request to reopen is made after a decision is issued, it shall be treated as a request to set aside a default order. If the request is made after the expiration of the [ten-day]relevant time limit, the requesting party [requesting reopening ]must show good cause for not making [the]a timely request[within ten days]. Good cause is defined as a showing that the delay was due to circumstances beyond the party's control, or that the delay was due to circumstances that were compelling and reasonable. Ordinary illness, lack of transportation, and temporary absence do not generally constitute good cause.

[(3) The ALJ has the discretion to schedule a hearing to determine if a party requesting that a default order or dismissal be set aside or a reopening satisfied the requirements of this rule or may grant or deny the request on the basis of the record in the case.

(4) If a presiding officer issued the default or dismissal, the officer shall forward the request to the Division of Adjudication. The request will be assigned to an ALJ who will then determine if the party requesting that the default or dismissal be set aside or that the hearing be reopened has satisfied the requirements of this rule.]

([5]3) The ALJ may, on his or her own motion, set aside a default order or reschedule, continue , or reopen a [case]hearing if it appears necessary to take continuing jurisdiction based on a mistake as to facts or a change in conditions, or if the denial of a hearing would be an affront to fairness. A presiding officer may, on his or her own motion, agree on behalf of the Department to set aside a default [or dismissal]order on the same grounds.

(4) If a default order is not set aside or a hearing is not reopened under Subsection (3) above, the request to set aside or reopen shall be forwarded to the Division of Adjudication for assignment to an ALJ. The ALJ shall hold a hearing to determine whether to set aside the default order or reopen the prior hearing unless it is clear from the record before the ALJ that the person seeking to set aside the default order or reopen the hearing cannot meet the applicable standards set forth in this rule or R986-100-132.

([6]5) If a request to set aside the default order or [dismissal or a request for reopening]reopen the hearing is not granted, the ALJ will issue a decision denying the request[to reopen]. A copy of the decision will be given or mailed to each party, with a clear statement of the right of appeal or judicial review. A [defaulted ]party may appeal [a]the denial [of a request to set aside a default or dismissal ]by following the procedure in R986-100-135. The appeal can only contest the denial of the request to set aside [the default]or reopen and not the underlying merits of the case. If the [default or dismissal is set aside]denial is reversed on appeal, the Executive Director or designee may rule on the merits or remand the case to an ALJ for a ruling on the merits on an additional hearing if necessary.

 

R986-100-132. What Constitutes Grounds to Set Aside a Default Order or [ Dismissal ] Reopen a Hearing .

(1) A request to reopen a hearing or set aside a default order for failure to participate:

(a) will be granted if the party was prevented from participating and/or appearing at the hearing due to circumstances beyond the party's control;

(b) may be granted upon such terms as are just for any of the following reasons: mistake, inadvertence, surprise, excusable neglect or any other reason justifying relief from the operation of the decision. The determination of what sorts of neglect will be considered excusable is an equitable one, taking into account all of the relevant circumstances[including:

(i) the danger that the party not requesting reopening will be harmed by reopening,

(ii) the length of the delay caused by the party's failure to participate including the length of time to request reopening,

(iii) the reason for the request including whether it was within the reasonable control of the party requesting reopening,

(iv) whether the party requesting reopening acted in good faith, and

(v) whether the party was represented by another at the time of the hearing. Because they are required to know and understand Department rules, attorneys and professional representatives are held to a higher standard, and

(vi) whether based on the evidence of record and the parties arguments or statements, setting aside the default and taking additional evidence might effect the outcome of the case].

(2) Requests to reopen or set aside are remedial in nature and thus must be liberally construed in favor of providing parties with an opportunity to be heard and present their case. Any doubt must be resolved in favor of granting reopening.

 

R986-100-133. Canceling an Appeal and Hearing.

[When a client notifies the Division of Adjudication or the ALJ that the client wants to cancel the hearing and not proceed with the appeal, a decision dismissing the appeal will be issued. This decision will have the effect of upholding the Department decision. The client will have ten days in which to reinstate the appeal by filing a written request for reinstatement with the Division of Adjudication.](1) A person who has filed an appeal and requested a fair hearing may withdraw the request either orally or in writing by contacting the Division of Adjudication. The request to withdraw will be granted unless granting the request would impair the due process rights of another interested person. If the request to withdraw is granted, the Department shall issue a written decision dismissing the request. The granting of a withdrawal has the effect of upholding the initial Department decision.

(2) A person may reinstate a previously withdrawn appeal by making a request (either orally or in writing) to the Division of Adjudication that the appeal be reinstated. A request to reinstate must be made within ten days of the date the person receives the withdrawal decision. For purposes of this section, the withdrawal decision is considered to have been received three days after the mailing date on the decision letter. If the request to reinstate is made after the expiration of the ten-day time limit, the person must show good cause (as defined in R986-100-131) for not making the request within ten days.

 

R986-100-134. Payments of Assistance Pending the Hearing.

(1) A client is entitled to receive continued assistance pending a hearing contesting a Department decision to reduce or terminate SNAP or RRP financial assistance if the client's request for a hearing is received no later than 10 days after the date of the notice of the reduction, or termination. The assistance will continue unless the certification period expires until a decision is issued by the ALJ. If the certification period expires while the hearing or decision is pending, assistance will be terminated. If a client becomes ineligible or the assistance amount is reduced for another reason pending a hearing, assistance will be terminated or reduced for the new reason unless a hearing is requested on the new action.

(2) If the client can show good cause for not requesting the hearing within 10 days of the notice, assistance may be continued if the client can show good cause (as defined in R986-100-131) for failing to file in a timely fashion.[Good cause in this paragraph means that the delay in filing was due to circumstances beyond the client's control or for circumstances which were compelling and reasonable. Because the Department allows a client to request a hearing by telephone or mail, good cause does not mean illness, lack of transportation or temporary absence.]

(3) A client affected by Subsection (1) can request that payment of assistance not be continued pending a hearing but the request must be in writing.

(4) If payments are continued pending a hearing, [the]a client affected by Subsection (1) is responsible for any overpayment in the event of an adverse decision.

(5) If the decision of the ALJ is adverse to [the]a client affected by Subsection (1), the client is not eligible for continued assistance pending any appeal of that decision.

(6) If a decision favorable to [the]a client affected by Subsection (1) is rendered after a hearing, and payments were not made pending the decision, retroactive payment will be paid back to the date of the adverse action if the client is otherwise eligible.

(7) Financial assistance payments under FEP, FEPTP, GA or WTE, and CC subsidies will not continue during the hearing process regardless of when the appeal is filed.

(8) Financial assistance under the RRP will not extend for longer than the eight-month time limit for that program under any circumstances.

(9) Assistance is not allowed pending a hearing from a denial of an application for assistance.

 

R986-100-135. Further Appeal From the Decision of the ALJ or Presiding Officer.

Either party has the option of appealing the decision of the ALJ or presiding officer to either the Executive Director or person designated by the Executive Director or to the District Court. The appeal must be filed, in writing, within 30 days of the issuance of the decision of the ALJ or presiding officer.[If a request for a fair hearing is not timely filed under R986-100-123, there are no further appeal rights.]

R986-100-136. SNAP Administrative Disqualification Hearing (ADH) Procedures.

(1) For alleged IPVs involving SNAP, an ADH will be held unless the client formally waives the right to an ADH in writing. If the client does not participate in the hearing, the ALJ will make a decision based solely on the evidence before the ALJ.

(2) The hearing procedures set forth in R986-100-123 through R986-100-135 apply to ADHs unless otherwise specified or inconsistent with this section.

(3) The Division of Adjudication will schedule all ADHs.

(a) A pending ADH has no effect on a household's eligibility or benefit level.

(b) The Department may withdraw a request for an ADH at any time prior to the scheduled hearing by sending written notice to the Division of Adjudication and all parties.

(4) A client may waive the right to an ADH by completing, signing, and returning the waiver form prepared by the Department.

(a) A completed, signed, and submitted waiver constitutes an agreement by the client to forego the ADH and accept the prescribed disqualification period.

(b) If the client accused of the IPV is not the head of household, the waiver must be signed by both the client accused of the IPV and the head of household to be effective. Waiver of the right to an ADH shall result in the client accused of the IPV and all other adult household members being held responsible to repay any overpayment.

(c) A client may rescind a waiver of the right to an ADH by submitting a written statement to the Division of Adjudication requesting that the waiver be rescinded. The written statement must be submitted within 30 days of the date the waiver was submitted, or before the start of the disqualification period, whichever is earlier. Once a valid written statement rescinding the waiver is received, the Division of Adjudication will schedule an ADH.

(5) The notice of hearing shall contain, in addition to the items described in R986-100-127, the following:

(a) The charges against the client;

(b) A summary of the evidence, and how and where it can be examined;

(c) A statement that the client will, upon receipt of the notice, have 10 days from the date of the hearing to present good cause for failure to appear in order to receive a new hearing;

(d) A warning that a determination of IPV will result in a specific disqualification period, and a statement of which penalty the Department believes is applicable to the case;

(e) A listing of the client's rights as outlined in R986-100-128;

(f) A statement that the hearing does not preclude the State or Federal government from prosecuting the client for the IPV in a civil or criminal court action, or from collecting any overissuance(s); and

(g) A statement informing the client about what free legal services are available.

(6) The Division of Adjudication may combine a fair hearing and an ADH into a single hearing if the relevant factual issues arise out of the same or related circumstances.

(a) The notice of hearing shall inform the parties of whether a fair hearing and an ADH will be combined into a single hearing.

(b) If the hearings are combined, the applicable filing and hearing deadlines and timeframes are those contained in this section to the extent of any conflict.

(c) If the client fails to appear or participate in the combined hearing, the fair hearing will be dismissed but the ADH will still be held.

(7) The ALJ shall advise the parties that they have the right to refuse to answer questions during the hearing, and that the ALJ may draw reasonable adverse inferences based on a party's refusal to answer questions during the hearing.

(8) A qualified employee of the Department shall represent the Department at the ADH.

(9) Within 90 days of the date the notice of hearing is issued, the ALJ shall conduct the hearing, arrive at a decision, and issue written notice of the decision to the Department and all parties. If the ADH is postponed for any reason, the 90-day time limit will be extended by as many days as the ADH is postponed.

(10) If any party fails to participate in the hearing and disagrees with the hearing decision, the party may request reopening of the hearing as set forth in R986-100-131.

(11) If the ALJ determines the client did not commit an IPV, no disqualification shall be assessed. Any party, including the Department, may utilize the administrative review process set forth in R986-100-135.

 

KEY: employment support procedures , SNAP, public assistance, hearing procedures

Date of Enactment or Last Substantive Amendment: [October 1, 2016]2018

Notice of Continuation: September 2, 2015

Authorizing, and Implemented or Interpreted Law: 35A-3-101 et seq.; 35A-3-301 et seq.; 35A-3-401 et seq.

---