R527-200. Administrative Procedures, R527. Human Services, Recovery Services, Utah Administrative Code

Utah Administrative Code (Current through November 1, 2019)

R527-200-1. Authority

Latest version.

This rule establishes procedures for informal adjudicative proceedings as required by Section 63G-4-203 of the Administrative Procedures Act.

R527-200-2. Definitions

Latest version.

1. Terms used in this rule are defined in Sections 62A-11-303 and 63G-4-103.

2. In addition,

a. "office" means the Office of Recovery Services;

b. "participate" means

(i) in a proceeding that was initiated by a notice of agency action, present relevant information to the presiding officer within the time period described by statute or rule for requesting a hearing; and

(ii) if a hearing is scheduled, participate means attend the hearing;

c. "party" means the Office of Recovery Services and the respondent.

d. in a proceeding to determine the noncooperation of a IV-A or Non-IV-A Medicaid recipient or applicant, the recipient or applicant is the respondent and is therefore a "party".

e. "location information" means the current, verified residential address of a custodial or noncustodial parent and, if different and known to the office, the current, verified residence of any child named in a parent-time order that specifies time periods during which the child shall be with the noncustodial parent as provided in Sections 30-3-32 through 30-3-38. If a current, verified residential address is not available, "location information" means an employment address if known.

f. "other location information" means a verified, non-residential mailing address such as a Post Office Box or Rural Route, at which a party whose location information is being sought receives mail.

g. "files" on custodial and noncustodial parents means records contained in open child support services cases, in which both paper and electronic case information may be stored.

R527-200-3. Purpose

Latest version.

The purpose of this rule is to:

1. establish the form of proceedings;

2. provide procedures for requesting and obtaining a hearing when a proceeding is initiated by a notice of agency action;

3. provide procedures and standards for orders resulting from the administrative process;

4. provide procedures for informal proceedings;

5. provide procedures for the conduct of hearings and other informal adjudicative proceedings;

6. provide procedures for requesting reconsideration;

7. provide procedures for a motion to set aside a default order;

8. provide procedures for amending an administrative order;

9. provide procedures for setting aside an administrative order; and

10. provide procedures for requesting judicial review.

R527-200-4. Designation of Presiding Officers

Latest version.

The following persons are designated presiding officers in adjudicative proceedings:

1. agents;

2. senior agents;

3. team managers;

4. quality assurance specialists;

5. associate regional directors;

6. regional directors;

7. directors;

8. other persons designated by the director of the Office of Recovery Services.

R527-200-5. Form of Proceeding

Latest version.

All adjudicative proceedings commenced by the office through a notice of agency action, or commenced by other persons affected by the office's actions through a request for agency action shall be informal adjudicative proceedings.

R527-200-6. Informal Adjudicative Proceedings

Latest version.

The following adjudicative proceedings are considered to be informal:

1. proceedings to establish or modify child support orders;

2. proceedings to determine paternity;

3. proceedings to establish a judgment for genetic testing costs;

4. proceedings to establish a judgment for birth expenses;

5. proceedings to establish or modify an order regarding liability for medical and dental expenses of a dependent child;

6. proceedings to establish an order when a notice to enroll a child in a medical insurance plan is contested;

7. proceedings to establish an order against a garnishee enforcing an administrative garnishment;

8. proceedings to determine whether the information concerning a support debt which will be reported to consumer reporting agencies is accurate;

9. proceedings to establish a retained support obligation;

10. proceedings to amend an administrative order;

11. proceedings to set aside an administrative order;

12. proceedings to establish an order which determines past-due support following a request for agency action;

13. proceedings to establish an order when an office determination of noncooperation is contested by IV-A or Non-IV-A Medicaid recipients;

14. proceedings to establish a judgment against a responsible party for costs and/or fees, and to impose penalties associated with legal action taken by the office;

15. proceedings to establish an order of non-disclosure when a determination is made not to disclose a parent's identifying information to another state in an interstate case action;

16. proceedings to approve or deny requests for waiver or deferral of estate recovery for reimbursement of Medicaid;

17. proceedings to determine whether location information or other location information available in files on custodial or noncustodial parents may be released to the requesting party or to the requesting party's legal counsel in accordance with the provisions of Utah Code Title 62A, Chapter 11;

18. proceedings to establish an order when a payment schedule is contested;

19. proceedings to establish an order when a lien-levy action is contested; and

20. proceedings to establish an order when the obligation based on a change in the physical custody of a child is contested.

R527-200-7. Service of Notice and Orders

Latest version.

Notices, orders, written decisions, or any other documents for which service is required or permitted to be made by Section 63G-4 may be served using methods provided by Section 63G-4 or the Utah Rules of Civil Procedure.

R527-200-8. Procedures for Informal Adjudicative Proceedings

Latest version.

The procedures for informal adjudicative proceedings are as follows:

1. In proceedings initiated by a notice of agency action, the presiding officer will issue an order of default unless the respondent does one of the following within 30 days in response to service of the notice:

a. pays the entire amount in full; or,

b. participates as provided in R527-200-13;

2. In proceedings initiated by a notice of agency action, the presiding officer shall schedule a hearing if available under R527-200-10 and the office receives the respondent's written request:

a. within 30 days of service of notice of agency action; or

b. before an order is issued by the presiding officer.

3. Within a reasonable time after the close of an informal adjudicative proceeding, the presiding officer shall issue a signed order in writing which states the following:

a. the decision;

b. the reason for the decision;

c. a notice of the right to request reconsideration and the right to petition for judicial review; and

d. the time limits for requesting reconsideration or filing a petition for judicial review.

4. The presiding officer's order shall be based on the facts appearing in the agency's case records and on the facts presented in evidence at any hearings or other adjudicative proceedings.

5. A copy of the presiding officer's order shall be promptly mailed to each of the parties.

R527-200-9. Response time for Proceedings Initiated by a Request for Agency Action

Latest version.

The respondent may request an informal adjudicative proceeding within the following timeframes:

1. within 30 calendar days of the date of the notice when contesting the amount of past-due support in the Annual Notice of Past-due Support;

2. within 15 calendar days of the date of this notice, or within 30 calendar days of the date of this notice if the non-requesting party resides outside of Utah and intervention is required from another IV-D agency to facilitate communication with the non-requesting party, when contesting whether location information or other location information may be released; and

3. within 15 calendar days of the date of the notice when contesting the obligation based on a change in physical custody of the child.

R527-200-10. Availability of a Hearing in Informal Adjudicative Proceedings

Latest version.

1. A hearing before a presiding officer in the Office of Administrative Hearings, Department of Human Services is permitted in an informal adjudicative proceeding if:

a. the proceeding was initiated by a notice of agency action; and

b. the respondent in a properly filed request for hearing or in the course of participation raises a genuine issue as to a material fact as provided in R527-200-11; and

c. the respondent participates in a preliminary agency conference.

2. A proceeding before a presiding officer in the Office of Recovery Services, Department of Human Services is permitted if an informal adjudicative proceeding is initiated by a request for agency action.

a. The presiding officer shall conduct a review of all documentation provided by the requesting party and in the agency files, and issue a Decision and Order stating the decision and the reasons for the decision.

b. The requesting party shall not be required to appear, either in person or through representation when the proceeding is conducted, but may choose to attend.

R527-200-11. Hearings in Informal Adjudicative Proceedings

Latest version.

1. In proceedings initiated by a notice of agency action, all hearing requests shall be referred to the presiding officer appointed to conduct hearings.

2. The presiding officer shall give timely notice of the date and time of the hearing to all parties.

3. Before granting a hearing in a case referred, the presiding officer appointed to conduct the hearing may decide whether the respondent raises a genuine issue as to a material fact. Upon determining there is no genuine issue as to a material fact, the presiding officer may deny the request for hearing, and close the adjudicative proceeding.

4. The respondent may object to the denial of a hearing as grounds for relief in a request for reconsideration.

5. There is no genuine issue as to a material fact if:

a. the evidence gathered by the office and the evidence presented for acceptance by the respondent are sufficient to establish the obligation of the respondent under applicable law; and

b. no other evidence in the record or presented for acceptance by the respondent in the course of respondent's participation conflicts with the evidence to be relied upon by the presiding officer in issuing an order.

6. Evidence upon which a presiding officer may rely in issuing an order when there has been no hearing:

a. documented wage information from employers or governmental sources;

b. failure of the respondent to produce upon request of the presiding officer canceled checks as evidence of payments made;

c. failure of the respondent to produce a record kept by the clerk of court, a financial institution, or the office, showing payments made;

d. failure of the respondent to produce a written agreement in a Non-IV-A case which was signed by both the absent parent and the custodial parent providing for an alternate means of satisfying a child support obligation;

e. birth certificates of the children whose support is sought from the respondent;

f. certified copies of the latest support orders;

g. other applicable documentation.

R527-200-12. Telephonic Hearings

Latest version.

Telephonic hearings will be held at the discretion of the Office of Administrative Hearings, Department of Human Services.

R527-200-13. Procedures and Standards for Orders Resulting from Service of a Notice of Agency Action

Latest version.

1. If the respondent agrees with the notice of agency action, he may stipulate to the facts and to the amount of the debt and current obligation to be paid. A stipulation, and judgment and order based on that stipulation is prepared by the office for the respondent's signature. Orders based on stipulation are not subject to reconsideration or judicial review.

2. If the respondent participates by attending a preliminary conference or otherwise presents relevant information to the presiding officer, but does not reach an agreement with the office or is unavailable to sign a stipulation, and does not request a hearing, the presiding officer shall issue a judgment and order based on that participation.

3. If the respondent participates in any way after receiving a notice of agency action to establish paternity and child support, but fails to appear for genetic testing or respond to the notice of test results, the presiding officer shall issue an order of paternity and child support based on existing information and circumstances.

4. If the respondent requests a hearing and participates by attending a preliminary agency conference, and after that conference the respondent does not agree with the notice of agency action, and participates by attending the hearing, the presiding officer who conducts the hearing shall issue an order based upon the hearing.

5. If the respondent fails to participate as follows, the appropriate presiding officer may issue an order of default and default judgment:

a. the respondent fails to respond to the notice of agency action and does not request a hearing;

b. after proper notice the respondent fails to attend a preliminary conference scheduled by the presiding officer to consider matters which may aid in the disposition of the action; or

c. after proper notice the respondent fails to attend a hearing scheduled by the presiding officer pursuant to a written request for a hearing.

6. The default judgment is taken for the same amount and for the same months specified in the notice of agency action which was served on the respondent. The judgment cannot be taken for more than the amount or time periods specified in the notice of agency action. If there is no previous court order and the best available information supports the amount, the judgment may be taken for less than the amount specified in the notice of agency action. The respondent may seek to have the default order set aside, in accordance with Section 63G-4-209.

7. If a respondent's request for a hearing is denied under R527-200-11, the presiding officer issues a judgment and order based upon the information in the case record.

8. Notwithstanding any order which sets payments on arrearages, the office reserves the right to periodically report the total past-due support amount to consumer reporting agencies, intercept state and federal tax refunds, submit cases to the federal administrative offset program where permitted by federal regulation, levy upon real and personal property, and to reassess payments on arrearages.

R527-200-14. Conduct of Hearings and Other Informal Adjudicative Proceedings

Latest version.

1. The hearing, or other proceeding shall be conducted by a duly qualified presiding officer. The presiding officer shall not have been involved in preparing the information alleged in the notice which is the basis of the adjudicative proceeding. No presiding officer shall conduct a hearing or other adjudicative proceeding in a contested case if it is alleged and proved that good cause exists for the removal of the presiding officer assigned to the case. The party or representative requesting the change of presiding officer shall make the request in writing, and the request shall be filed and called to the attention of the presiding officer not less than 24 hours in advance of the hearing.

2. Duties of the presiding officer when conducting a hearing:

a. Based upon the notice of agency action, objections thereto, if any, and the evidence adduced at the hearing, the presiding officer shall determine the liability and responsibility, if any, of the respondent under Section 62A-11-304.2. Following determination of liability, the presiding officer shall refer the obligor to the team handling the case for determination of acceptable periodic payment or alternative means of satisfaction of any arrearage obligation.

b. The presiding officer conducting the hearing may:

(i) regulate the course of hearing on all issues designated for hearing;

(ii) receive and determine procedural requests, rule on offers of proof and evidentiary objections, receive relevant evidence, rule on the scope and extent of cross-examination, and hear argument and make determination of all questions of law necessary to the conduct of the hearing;

(iii) request testimony under oath or affirmation administered by the presiding officer;

(iv) upon motion, amend the notice of agency action to conform to the evidence.

3. Rules of Evidence in hearings:

a. Discovery is prohibited, but the office may issue subpoenas or other orders to compel production of necessary evidence.

b. Any person who is a party to the proceedings may call witnesses and present such oral, documentary, and other evidence and comment on the issues and conduct such cross-examination of any witness as may be required for a full and true disclosure of all facts relevant to any issue designated for fact hearing and as may affect the disposition of any interest which permits the person participating to be a party.

c. Any evidence may be presented by affidavit rather than by oral testimony subject to the right of any party to call and examine or cross-examine the affiant.

d. All relevant evidence shall be admitted.

e. Official notice may be taken of all facts of which judicial notice may be taken in the courts of this state.

f. All parties shall have access to information contained in the office's files and to all materials and information gathered in the investigation, to the extent permitted by law and subject to R527-5.

g. Intervention is prohibited.

h. In child support cases the hearing shall be open to the obligee and all parties, as defined in R527-200-2.

4. Rights of the parties in hearings: A respondent appearing before the presiding officer for the purpose of a hearing may be represented by a licensed attorney, or, after leave of the presiding officer, any other person designated to act as the respondent's representative for the purpose of the hearing. The office's supporting evidence for the office's claim shall be presented at a hearing before a presiding officer by an agent or representative from the office. The supporting evidence may, at the office's discretion, be presented by a representative from the office of the Attorney General or by a staff attorney.

R527-200-15. Agency Review

Latest version.

Agency review shall not be allowed. Nothing in this rule prohibits a party from filing a request for reconsideration or for judicial review as provided in Sections 63G-4-302 and 63G-4-401.

R527-200-16. Reconsideration

Latest version.

Either the respondent or the office may request reconsideration in accordance with Section 63G-4-302 once during an informal adjudicative proceeding.

R527-200-17. Setting Aside Administrative Orders

Latest version.

1. The office may set aside an administrative order for reasons including the following:

a. A rule or policy was not followed when the order was taken.

b. The respondent was not properly served with a notice of agency action.

c. The respondent was not given due process.

d. The order has been replaced by a judicial order which covers the same time period.

2. The office shall notify the respondent of its intent to set the order aside by serving the respondent with a notice of agency action. The notice shall be signed by a presiding officer.

3. If after serving the respondent with a notice of agency action, the presiding officer determines that the order shall be set aside, the office shall notify the respondent.

R527-200-18. Amending Administrative Orders

Latest version.

1. The office may amend an order for reasons including the following:

a. A clerical mistake was made in the preparation of the order.

b. The time periods covered in the order overlap the time periods in another order for the same participants.

2. The office shall notify the respondent of its intent to amend the order by serving the respondent with a notice of agency action. The notice shall be signed by a presiding officer.

3. If after serving the respondent with a notice of agency action, the presiding officer determines that the order shall be amended, the office shall provide a copy of the amended order to the respondent.

R527-200-19. Amending an Administrative Paternity Order

Latest version.

1. If an administrative paternity order has been entered and the individual determined to be the father requests that paternity be disestablished based on genetic test results from an accredited lab which appear to exclude him as the biological father and genetic testing has not previously been completed, the presiding officer shall initiate an adjudicative proceeding to amend the paternity order prospectively.

2. The presiding officer shall notify the mother and the previously determined legal father of the intent to amend the order by sending notices of intent to amend based on the genetic test results.

3. If the mother or previously determined legal father do not present other evidence which calls into doubt the credibility of the genetic test results and the mother does not contest the administrative action, the presiding officer shall issue an order which amends the original order, finding the previously determined legal father to no longer be the legal father effective the date the amended order is issued. The presiding officer shall send a copy of the order to both the mother and the former legal father.

4. If other evidence is presented which calls into doubt the credibility of the genetic test results or the mother contests the administrative action, the presiding officer shall not amend the original paternity order. The presiding officer shall send notice of the decision to the mother and the father, which will inform the father of his right to administrative reconsideration of the decision and to appeal the decision to a court of competent jurisdiction.