Current through Register Vol. 54, No. 44, November 2, 2024
(a)
Requesting a hearing. The following procedures will be
employed in requesting a hearing:
(1)
Aid to clients making appeals. The County Assistance Office or
administering or provider agency will provide whatever help the
applicant/recipient needs in requesting a hearing. This may include the
following:
(i) Clearly explaining the basis
for questioned decisions or actions.
(ii) Explaining the rights and fair hearing
proceedings of the applicant/recipient.
(iii) Providing the necessary forms and
explaining to the applicant/ recipient how to file his appeal and, if
necessary, how to fill out the forms.
(iv) Advising the applicant/recipient that he
may be represented by an attorney, relative, friend or other spokesman and
explaining that he may contact his local bar association to locate the legal
services available in the county.
(v) For food stamps, upon request, making
available without charge case record materials relevant to the decision or
action of the agency which are necessary for a household or its representative
to determine whether a hearing should be requested or to prepare for a hearing.
If the individual making the request speaks a language other than English and
requires an interpreter pursuant to
7 CFR
272.4(c)(3), the agency
shall provide bilingual staff or interpreters to explain the hearing procedures
in that language.
(2)
Method of appeal. Procedures relating to the method of appeal
will be as follows:
(i) A hearing request must
be made to the agency which notified the client of its decision or action. When
an appeal is taken, the appeal letter and proposed action must be forwarded to
the Office of Hearings and Appeals.
(ii) A request for a hearing will usually be
made in writing. Appeals must specify the action appealed from and must be
signed by the applicant/recipient.
(iii) If an oral request for a hearing is
made, the agency which receives the request will either give the
applicant/recipient the appropriate form to complete or record the request for
a hearing with a statement of the action appealed from and the reasons given by
the applicant/recipient on the proper form or memorandum, and obtain the
signature of the applicant/recipient.
(iv) An oral appeal shall be reduced to a
written appeal by the client within 3 working days after the oral appeal was
made. The County Assistance Office, Title XX administering or service provider
agency will aid the appellant in reducing that oral request to writing. If the
oral appeal is not reduced to writing and signed by the client within this time
period, the appeal will not be considered as perfected. The County Assistance
Office, Title XX administering or service provider agency will send to the
Office of Hearings and Appeals a notation of the oral appeal; the written
confirmation of that appeal signed by the client, if appropriate; and a copy of
the proposed action or decision taken by the County Assistance Office, Title XX
administering or service provider agency within 3 working days after receipt of
the written appeal.
(v) Every
appeal must bear the signature of the applicant/recipient.
(vi) For food stamps, the provision for
reducing an oral appeal to writing in paragraphs (2)(ii), (iii), (iv) and (v)
will not apply. A food stamp appeal may be made orally or in writing by the
household or its representative. If an oral appeal is made, the County
Assistance Office will send to the Office of Hearings and Appeals a notation of
the oral appeal and a copy of the proposed action or decision taken by the
County Assistance Office, if any, within three working days after receipt of
the oral appeal.
(vii) All appeals
must be made to the County Assistance Office, administering agency or provider
agency which notified the applicant/ recipient of its decision or action. The
agency which receives the request will stamp the appeal upon receipt and
forward it to the Office of Hearings and Appeals within 3 working
days.
(3)
Agency
staff responsibility upon receipt of a hearing request. Agency staff
responsibility upon receipt of a hearing request will be as follows:
(i) When the County Assistance Office,
administering agency, or provider agency receives a request for a hearing in
whatever form as provided in subsection (a)(2), it will date stamp it upon
receipt and review the complaint of the appellant to assure itself that the
decision in question is in accordance with Departmental regulations and
policies and to determine what additional step, if any, should be taken to
resolve the issue without a hearing.
(ii) The County Assistance Office,
administering agency, or provider agency shall offer the appellant the
opportunity for an agency conference to resolve, if possible, the appeal. In
food stamp appeals, the agency conferences shall be attended by an eligibility
supervisor or his representative, or both. An agency conference for households
contesting a denial of expedited services for food stamps shall be scheduled
within 2 working days, unless the household requests a later conference date.
The appellant shall be advised that the agency conference is optional and that
it shall in no way delay or replace the fair hearing process. An agency
conference may result in resolution of the dispute. If this occurs, the hearing
examiner must be notified in writing. If not, a fair hearing must still be
held.
(iii) When the County
Assistance Office, administering agency, or provider agency receives an oral
request for a hearing, it will immediately make a written notation with the
date of the oral request and obtain the signature of the appellant on the
proper form as described in paragraph (2)(iii).
(iv) For food stamps, the provision for
reducing an oral appeal to writing in paragraph (3)(iii) will not apply. A food
stamp appeal may be made orally or in writing by the household or its
representative. If an oral appeal is made, the County Assistance Office will
send to the Office of Hearings and Appeals a notation of the oral appeal and a
copy of the proposed action or decision taken by the County Assistance Office,
if any, within 3 working days after receipt of the oral appeal as described in
paragraph (2)(vi).
(v) Appeals to
be scheduled for a hearing must be forwarded to the Office of Hearings and
Appeals within 3 working days from the date the appeal was received and date
stamped, as described in clauses (B) and (E).
(A)
Agency decision correct.
If the agency which received the hearing request determines that the decision
in question is in accordance with departmental regulations, it will forward the
appeal to the Office of Hearings and Appeals within 3 working days from the
time the appeal is received for scheduling of a fair hearing.
(B)
Agency decision not
correct. If the agency decision is incorrect, the following procedure
will apply:
(I) If the agency which receives
the hearing request determines that the decision in question does not accord
with Departmental regulations or policies or if new or additional information
is introduced which alters the decision, it will take corrective action. If a
payment is involved, the corrected payment will be made retroactive to the date
the incorrect action was taken as described in §
227.24 (relating to
procedures).
(II) If the appellant
is awarded a corrective payment from the County Assistance Office, the County
Assistance Office will present the client with a written statement with an
explanation for the payment. However, a corrective action or payment will not
interfere with, cancel or otherwise affect the right of the appellant to
proceed with the hearing. If the appellant is satisfied with the corrective
action or adjustment and wants to withdraw his request for a hearing, his
withdrawal must be in writing as described in subsection (e)(2). The agency
which receives the written withdrawal will forward it to the Office of Hearings
and Appeals and notify the representative of the appellant, if known.
(C)
An appeal received
from a proposed action. Procedures for an appeal received from a
proposed action will conform with the following:
(I) When an applicant/recipient responds to a
written notice by requesting a hearing within the specified time period as
described in §
133.4 (relating to procedures),
the agency receiving the hearing request will date stamp the form upon receipt,
review the complaint as required in this paragraph, and forward the appeal to
the Office of Hearings and Appeals within 3 working days from the time the
appeal is received from scheduling a fair hearing. In cases in which a hearing
is requested within the specified time period, assistance will be continued
pending the hearing decision unless the client waives continuation of
benefits.
(II) For food stamps, a
household may waive continuation of benefits by indicating on the appeal form
that the household does not desire benefits be continued pending the hearing
decision. If the form does not positively indicate that the household has
waived continuation of benefits and the certification period has not expired,
the County Assistance Office shall assume that continuation of benefits is
desired and the benefits shall be issued accordingly. The County Assistance
Office must promptly inform the household in writing if benefits are reduced or
terminated pending the hearing decision.
(III) When a change affecting the grant or
food stamps of the recipient occurs while the hearing decision is pending and
the recipient fails to appeal after notice of the change, the county office,
administering agency or provider agency will take its proposed action required
by this latest change.
(IV) If an
appeal from a proposed action is received in the County Assistance Office,
administering agency or provider agency after the specified time period and the
action has been taken as described in § 133.4, the agency receiving the
appeal will review the action taken and proceed in accordance with this
paragraph or clause (E), whichever is appropriate. When a food stamp household
establishes that its failure to appeal within the advance notice period was for
good cause, the County Assistance Office shall reinstate benefits to the prior
basis of issuance pending the hearing decision.
(V) When an appeal is received within the
time specified in §
275.3(b)
(relating to requirements), after an action to reduce, suspend or discontinue a
grant, food stamps, medical assistance or social services has been taken and a
written notice should have been sent but was not, assistance will be reinstated
effective the date the action was taken. The agency receiving the appeal will
promptly provide the client with a written statement detailing the reasons for
the action and immediately obtain the reasons of the client for his
disagreement with the proposed action as described in paragraph (2). The
documentation thus obtained will be forwarded within 3 working days to the
Office of Hearings and Appeals with a memorandum explaining the circumstances
involved for scheduling a fair hearing. Assistance will be continued pending
the hearing decision.
(D)
An appeal received from a food stamp written notice. When a
Food Stamp client responds to a written notice as a result of disagreement with
the proposed participation rate, or being declared ineligible on initial or
subsequent applications, or as a result of changes occurring at the end of the
normal certification period, food stamp benefits will be authorized or
continued only in the amounts determined at such initial application or
subsequent certification or recertification.
(E)
Agency staff responsibility after
review. If the issue is not resolved to the satisfaction of the
appellant after the agency review, or if the appellant wants to proceed with
the hearing, the agency receiving the appeal will do the following:
(I) Consider that an appeal of a denial,
reduction or discontinuance made within the time limitations as described in
§
275.3(b) obviates
the requirement of a reapplication by the appellant.
(II) Make available without charge to the
appellant or his representative on as early a date as possible prior to the
hearing the following: sentative on as early a date as possible prior to the
hearing the following:
(-a-) Information contained in the case record upon
which the decision or action is based and which the county office or
administering agency or provider agency will introduce as evidence at the
hearing as well as other case record materials which are relevant to the issues
raised by the appeal as described in §
275.3(a)(3).
(-b-) The names of the County Assistance Office staff
members and, if appropriate, the names of staff members of administering or
provider agencies who will be present at the hearing. Staff members who are
directly involved with making the decision or initiating the action must be
present.
(-c-) Forward the request for a hearing to the Office
of Hearings and Appeals within 3 working days from the time it is received and
date stamped.
(F)
Communication with the hearing officer. Procedures relating to
communication with the hearing officer will be as follows:
(I) Until the time of the fair hearing, only
the written notice of the Department to the applicant or recipient or any other
written statement used by the appellant to request a hearing will be available
to the hearing officer. Where there is no notice of the action of the county,
the administering or provider agency, the agency, upon request of the hearing
officer, will prepare a written explanation of its decision for the hearing
officer with a copy sent to the appellant and his representative.
(II) After the written notice or other
statement is submitted to the Office of Hearings and Appeals, no further
communication with the hearing officer prior to the hearing by the appellant or
the county office, administering agency or provider agency regarding the appeal
or the basis for the action of the agency will be permitted except as provided
in §
275.3(a)(3), or
to request continuances, or to withdraw the action or the appeal, or to request
a subpoena of evidence or
witnesses.
(b)
Time limits. Time limits
will be in accordance with the following:
(1)
Final administrative action must be taken in hearings within the following time
limits: 60 days from the date of an appeal from an agency decision affecting
food stamps, and 90 days from the date of an appeal from an agency decision
affecting cash assistance, medical assistance, or social service.
(2) Final administrative action will include
a hearing and subsequent decision by the hearing officer, optional review by
the Secretary or his designee as provided in subsection (h)(4), and, where the
appeal of the appellant is sustained, immediate implementation of the hearing
decision by the appropriate agency.
(3) For food stamps, when the hearing
decision results in an increase in household benefits, the County Assistance
Office must adjust the coupon allotment within 10 days of the receipt of the
decision. If necessary, the County Assistance Office will provide a
supplementary ATP or otherwise provide the household with an opportunity to
obtain the allotment outside of the normal issuance cycle; however, the County
Assistance Office may take longer than 10 days if it elects to increase the
allotment in the household's normal issuance cycle provided that the issuance
will occur within 60 days from the date the appeal is filed.
(4) If the appellant has not received final
administrative action within the specified time limits, the appropriate agency
will proceed in accordance with subsection (d).
(c)
Central office control.
Central office control will be in accordance with the following:
(1) When a request for a hearing is received,
the Office of Hearings and Appeals will establish a control for 60 or 90 days
from the date of appeal, whichever is applicable, excluding appeals which
involve only a claim for a one-time grant as described in §
175.23 (relating to requirements),
§
227.24 (relating to procedures)
and §
229.24 (relating to procedures);
or when assistance is continued pending a hearing decision because an appeal
from a proposed adverse action was filed within the advance notice period. If
food stamps together with another type of assistance are involved in an appeal,
both a 60-day and 90-day control will be set.
(2) In cases where the appellant is
responsible for delaying the hearing process, as described in subsection (e),
the time limit for final administrative action will be extended by the length
of the delay. For example, if the appellant requests a continuance of a hearing
for 10 days, final administrative action will then be required within 70 days
for food stamps or within 100 days for other assistance. In those cases that
have been delayed for this reason, the hearing officer will send written
notification to the Office of Hearings and Appeals.
(d)
Interim assistance. When
final administrative action has not been rendered within the applicable time
limit as described in subsection (c), the office of the appropriate Deputy
Secretary will notify the county office, administering, or provider agency to
authorize the assistance which the appellant has requested in his appeal until
final administrative action is rendered. Interim assistance will be authorized
effective with the first day after the applicable time limit expires. When the
appeal involves more than one type of assistance, the appropriate agency will
authorize an assistance benefit.
(1)
PA and MA. Cash assistance and medical assistance will be
authorized in the appropriate category, that is, AFDC, AFDC-CU and GA, in the
usual manner, as described in §
225.24(c)
(relating to procedures). The CAO will issue the appropriate MA Identification
Card and submit the Form PA 743 Documents in the usual manner. The assistance
will be continued until final administrative action is rendered.
(2)
Food stamps. Interim
food stamp assistance will be authorized in the usual manner with the
appropriate coding. Food stamps will be continued until final administrative
action is rendered.
(3)
Reporting. The CAO will prepare monthly reports on cases in
which interim assistance is authorized. Reports will be prepared on the last
day of the month and sent within 5 days from the previous reporting period to
the Office of Hearings and Appeals which will forward them to the Office of the
Deputy Secretary of Income Maintenance. The information required must be
reported on an individual case basis. The county office must ensure that the
amount of interim assistance listed is accurate. In all cases, the amount will
be the difference between what the appellant claims he is entitled to and what
the CAO determines the appellant is eligible to receive. In no case may the
amount of cash assistance be greater than the amounts specified in the
allowance schedule as described in §
175.23(a), nor
the allotment be greater than the amounts specified in the Basis of Issuance
Table except when the client is entitled to a special item allowance as
described in §
175.23(b) and
(c). The following are examples of report
preparation:
(i) An applicant who appeals the
decision of the county to adjust $50 monthly against his family size allowance
of $159 will be granted the $50 monthly as interim assistance after the
expiration of the 90-day period. On the monthly report, the CAO will list $50
as the amount of interim assistance as follows:
(A) | Monthly amount of assistance to
which appellant is entitled: | $159 |
(B) | Monthly amount of assistance to
which appellant is entitled by Departmental standards: | $109 |
(C) | Monthly amount of interim
assistance, (A) minus (B): | $50 |
(ii) A four-person food stamp household with
net monthly income of $560 will take exception to the computation. Applicant
claims deductions for utilities will exceed the amount allowed and net income
should be $510. Interim food stamps will be authorized after the expiration of
the 60-day period using the basis of issuance table and the net income claimed
by the client. The monthly report will be prepared as follows:
(A) Amount of coupons to which appellant
claims he is entitled:
Coupons $24
(B) Amount of coupons to which appellant is
entitled by Departmental standards:
Coupons 0
(C) Monthly amount of interim assistance, (A)
minus (B):
Total $24
(4)
Restitution. Interim
assistance will not be subject to restitution except in the case of deliberate
misrepresentation of facts by the appellant.
(5)
Appellant request for interim
assistance. When the appellant or his representative requests interim
assistance by telephone or in writing, the Executive Director or his delegate
of the agency against which the appeal was made will investigate the complaint
and authorize interim assistance within 48 hours effective with the first day
after the applicable time limit expires if the investigation confirms that
interim assistance is due. The representative of the appellant will, if
requested, confirm in writing the information given to the Executive Director
by telephone. If the agency director determines that interim assistance is not
due, notice of denial of interim assistance will be provided in writing to the
appellant and representative.
(e)
Scheduling the hearing.
Hearings will be scheduled in accordance with the following:
(1) Hearings will be scheduled to be held as
soon as possible, allowing at least 10 days notice to be given to the appellant
and his representative or a lesser time if requested by the
household.
(2) For food stamps,
hearing requests from households, such as migrant farmworkers, that plan to
move from the area before the hearing decision would normally be reached, shall
be expedited to enable them to receive a decision and a restoration of benefits
if the decision so indicates as described in subsection (h)(3)(iii) before they
leave the area.
(3) The appellant
who wishes to postpone the hearing shall contact the hearing officer and
provide a reason for the request. The hearing officer may approve the request
for postponement or continuation of the hearing. The hearing will be
rescheduled as soon as possible.
(4) For food stamps, an appellant may request
and is entitled to receive a postponement of the hearing for up to 30 days. The
hearing officer shall grant the postponement which may not exceed 30 days.
(5) In cases where the appellant
is responsible for delaying the hearing process, the time limit for final
administrative action is extended by the length of the delay as described in
subsection (c).
(6) When the
hearing issue involves an overpayment or reimbursement claim as described in
§
275.1 (relating to policy), the
County Board of Assistance will notify the Bureau of Claim Settlement in
Harrisburg of the issue. Reference should be made to the exception as described
in § 275.1.
(i)
Group
hearings. Group hearings will be held under the following
circumstances:
(A) Whenever two or more
requests for a hearing are received from appellants residing in the same
county, and the issues are the same in that the sole issue involved is one of a
Departmental regulation, and the facts are not in dispute, the hearings may be
consolidated into a single group hearing. The scheduling and conducting of a
group hearing will be discretionary with the hearing officer.
(B) In group hearings, the regulations
pertaining to fair hearings will apply. Thus, an appellant will be entitled, if
he so desires, to present his own case and be represented.
(C) A client may request that his hearing be
conducted as part of a group hearing. A client may demand that his hearing not
be part of a group hearing.
(ii)
Hearing withdrawn.
Hearing requests will be withdrawn only in accordance with the following:
(A) A request for a hearing which meets the
conditions as described in §
275.1 can only be dismissed
without a hearing when it has been withdrawn by the appellant or his authorized
representative in writing. Under no circumstances may the County Assistance
Office, administering agency or provider agency attempt to convince the
appellant to withdraw his appeal.
(B) If the appellant decides to withdraw his
request for a hearing after the appeal has been forwarded to the Office of
Hearings and Appeals, the appropriate agency will immediately notify the Office
of Hearings and Appeals and send a copy of the withdrawal date
stamped.
(iii)
Hearing abandoned. Appeals will be considered abandoned in
accordance with the following:
(A) If the
appellant or his representative fails to appear at the scheduled hearing
without good cause as determined by the hearing officer, the appeal will be
considered to be abandoned and will be dismissed.
(B) If the agency against which the appeal
was made fails to appear at the hearing, the appeal of the appellant will be
sustained by the hearing officer who will notify the agency of this decision in
writing.
(C) If neither the
appellant nor the appropriate agency or their representatives appear at the
hearing, the hearing officer will reschedule the
hearing.
(f)
Conducting the hearing.
The hearing will be held before a hearing officer. The hearing officer will be
a qualified agency official who has not been involved in any way with the
decision or action in question or with the person or officer who is responsible
for the decision or action up to the time of the hearing. The responsibilities
of the hearing officer in conducting the hearing are as follows:
(1) To conduct the hearing in an orderly but
informal manner.
(2) To obtain from
the appellant and agency staff members relevant testimony pertaining to the
issues in question and to limit the testimony to that which has bearing on the
issues involved.
(3) To provide the
appellant and the agency representatives with the opportunity to present their
case in an orderly manner, to present witnesses, to cross-examine witnesses and
to advance pertinent facts or arguments.
(4) To assure that documents and records
presented or referred to at the hearing are made part of the hearing
transcript. Persons at the hearing have the right to examine documents and
records used as evidence.
(5) To
obtain at agency expense and make part of the record a medical assessment other
than that of the persons involved in making the original decision when the
hearing involves medical issues such as those concerning a diagnosis, the
report of an examining physician or the decision of a medical review team, and
the hearing officer considers it necessary.
(6) To render a decision based upon the facts
and evidence as applied to Departmental regulations.
(g)
Hearing proceedings.
Hearing proceedings will conform with the following:
(1) The proceedings will follow this order:
(i) The hearing officer will open with a
statement of the purpose of the hearing, the procedure it will follow, who the
deciding authority is and the way the decision will be transmitted to the
appellant.
(ii) The hearing officer
will ask the appellant to state the issue or issues so that they are identified
at the commencement of the hearing.
(iii) The county or other appropriate agency
will present its case, the facts and events leading to the decision which will
be the basis for the decision or action, and the pertinent regulations
involved.
(iv) After a witness
testifies, the appellant or his representative may cross-examine the
witness.
(v) The appellant will
present his case.
(vi) After a
witness testifies, the agency or its representative may cross-examine that
witness.
(vii) The hearing officer
may question any witness or party at any time.
(viii) Before terminating the hearing, the
hearing officer will ask the appellant and his representative whether he wishes
any further opportunity to speak or whether he has presented his case fully.
(ix) The hearing officer may
continue the hearing or adjourn it to another date. If the appellant has
requested a continuance or is in some other manner responsible for a delay, the
time for final administrative action will be extended by the length of the
delay as provided in subsection (c).
(2)
Agency staff responsibility at
the hearings. The County Assistance Office and other agencies as
appropriate will prepare for the hearing so that evidence considered in making
the decision or taking the action which is at issue and evidence that supports
that decision or action will be introduced at the hearing in an orderly and
concise manner. Relevant information which is presented at a hearing will
include the following:
(i) Names,
relationships and ages of the persons affected, and the type of assistance
involved.
(ii) The decision or
action which prompted the request for the hearing.
(iii) Description of the relevant facts and
events leading to the decision or action plus evidence to support the decision
or action, including identification of the pertinent regulations applied in
making the decision.
(iv) Detailed
computation of the grant, allowances and income, before and after
implementation of the agency decision or action.
(3) The County Assistance Office or other
appropriate agency may be assigned legal representation at a hearing. When an
attorney is assigned, the agency will make available to him the evidence it
possesses regarding the decision and situation of the appellant plus additional
information the attorney may request to prepare his case. The attorney will
then be responsible for seeing that relevant testimony, evidence and the like
is introduced at the hearing.
(4)
If legal representation has not been assigned and the agency believes it would
benefit from the services of a lawyer, it may request legal representation from
the Office of Legal Counsel of the Department.
(5) At hearings when the agency has not been
assigned legal counsel, the presentation of the relevant information will be
made by agency staff.
(6) Since the
hearing decision will be based solely on the information presented at the
hearing as described in subsection (h)(2), failure to introduce relevant
evidence may result in an adverse decision if the evidence presented is
inadequate to support the decision.
(7) At the time of the hearing, the agency
against which the appeal is made will be responsible for seeing that their case
record contains current information on the issue or issues at
question.
(h)
Hearing decisions. Hearing decisions will conform with the
following:
(1)
Hearing
authority. Hearing authority will conform with the following:
(i) The hearing authority will be the
Secretary of the Department.
(ii)
The designated hearing officer will have the delegated authority from the
Secretary to make the decision on the appeal. Decisions will, therefore, be
rendered in the name of the Department and will be binding on the County Board
of Assistance. Administering or provider agencies involved shall be similarly
bound by the decision of the designated hearing officer, subject to their right
to appeal from that decision to Commonwealth Court. Provisions of the decision
will be promptly carried out.
(iii)
The Office of Hearings and Appeals is under the direct supervision of the
Secretary or his designee. The function of the hearing officer in rendering a
hearing decision will be as follows:
(A) To
determine the facts.
(B) To
determine the appropriate regulations that apply.
(C) To determine the action that should be
taken in relation to the established facts and correct application of
Departmental regulations.
(iv) Hearing officers may not render a
decision on the validity of a Departmental regulation nor may they invalidate
or modify a Departmental regulation. Hearing officers must, when necessary,
interpret regulations when regulations are ambiguous. Hearing decisions
receiving final administrative action are restricted to the case at issue and
do not create a precedent or apply to an entire class unless the hearing
involves an entire class as defined in subsection (e)(6)(i).
(2)
Basis for hearing
decision. Hearing decisions will be based on the following:
(i) The hearing officer will restrict his
decision to the hearing record, which will consist of testimony and exhibits
introduced into the hearing and the notice of action taken by the agency and
the appeal of the client. The hearing officer will make his adjudication in
accordance with regulations established by the Department which have been
promulgated in accordance with the Commonwealth Documents Law.
(ii) Medical report or reports obtained at
the direction of the hearing officer as described in subsection (f) will become
part of the hearing record.
(iii)
Briefs and exhibits will be due at the time of the hearing. If either the
agency or the appellant wishes to present additional exhibits after the
conclusion of the hearing, the hearing officer may allow the record to be kept
open for 5 working days for the exhibits which include briefs. Copies of
exhibits introduced into the record, after the conclusion of the hearing, will
be given to the hearing officer, the appellee, the appellant and his
representative. Briefs may be accepted later than 5 working days, but not
beyond 30 days after the hearing, if the appellant provides the hearing officer
with an affidavit that the appellant has requested information from a third
party which cannot be provided within 5 working days. If the appellant or his
representative is waiting for information from a third party, a delay beyond 5
days will extend the time for final administrative action by the length of the
delay as described in subsection (c).
(3)
Notice of decision.
Notices of hearing decisions will conform with the following:
(i) The notice of decision will specify the
reasons for the decision and identify the supporting evidence. The notice of
decision will also specify the eligibility of the appellant and, if relevant,
the amount of grant, food stamps, medical assistance or social services for
which the appellant is eligible. In addition, it will inform the appellant or
provider that he has the right to appeal the decision to the Commonwealth Court
if he is dissatisfied with it.
(ii)
If an underpayment in the cash grant is involved, a corrective payment will be
authorized retroactively to the date the incorrect action or inaction was taken
or was not taken. When the hearing decision sustains a proposed adverse action
of the County Assistance Office and assistance has been continued pending the
hearing, overpayment will occur for assistance received immediately following
the expiration of the advance notice period. Referral will be made to the
Bureau of Claim Settlement in accordance with §
255.4(f)
(relating to procedures).
(iii) If
food stamps are involved, lost benefits will be restored retroactively as
described in §
541.3(i)
(reserved). For households, such as migrant
farmworkers, that plan to move from the area, the County Assistance Office will
restore benefits to the household before their departure whenever possible. If
benefits are not restored prior to the departure of the household, the County
Assistance Office will prepare the Form FNS-286 as described in §
541.3(i)(10) and
will forward the Form FNS-286 together with the hearing decision to the
household or to the new County Assistance Office if this information is known.
The new County Assistance Office will issue the appropriate benefits. Where
food stamp benefits are continued during the pendency of the appeal and the
hearing officer finds against the appellant, a claim, Form PA 189-SP, will be
filed for the bonus coupons overissued prior to and during the pendency of the
appeal.
(iv) When the proposed
action of the County Assistance Office to reduce, suspend or terminate a grant,
food stamps, medical assistance, or social services is sustained, the action
will be taken effective the first payment date, issuance date and the like
whose deadline can be met following the decision.
(v) At the same time the written notice of
decision is sent to the appellant, copies will be sent to the agency Executive
Director and the representative of the appellant, if any. The hearing officer
must sign the copies of the hearing decision letter.
(4)
Review by the Secretary.
Review by the Secretary may be made under the following circumstances:
(i) The Director of the Office of Hearings
and Appeals will affirm, amend, reverse or remand a hearing examiner's
decisions. Reversal by the Director will be confined to matters of law and
established Departmental policy; no findings of fact made by the hearing
examiner will be subject to reversal. The Director may, however, remand the
case to the hearing examiner for further findings of fact. If the decision of
the hearing examiner is reversed, the reasons for the reversal will be provided
to the appellant in writing by the Director of the Office of Hearings and
Appeals.
(ii) Either party to a
proceeding has 15 days from the date of the decision of the Director of the
Office of Hearings and Appeals within which to request reconsideration of that
decision by the Secretary of the Department. The request must be in writing and
must set forth in detail the basis upon which the request is made. The request
should be addressed to the Secretary, but delivered to the Director, Office of
Hearings and Appeals, who, upon receipt of a request for reconsideration, will
forward the entire file and the request to the Secretary within 1 working day
of the receipt of the request. The Secretary will, within 15 working days from
the date the request is received, respond in writing to the request. The
Secretary may affirm, amend, or reverse the decision of the Director, or remand
the case to the hearing officer for further findings of fact. Actions taken by
the Secretary will be confined to matters of law and established departmental
policy; no findings of fact made by the hearing examiner will be subject to
reversal. The Secretary may, however, remand the case to the Director for
further findings of fact.
(iii)
Requests for reconsideration will stay action proposed in the decision of the
Director.
(iv) In cases where there
is a request for reconsideration, the time limit, 30 days, for appealing the
decision of the Department to the Commonwealth Court will begin on the date the
Secretary responds to the request.
(v) The request of the appellant for
reconsideration and the response by the Secretary will not be subject to the
time limits specified in subsection (b).
(5)
Digest of hearing
decisions. The Office of Hearings and Appeals will prepare a digest of
hearing adjudications which will contain the following:
(i) The month and year of the decision, with
a code for Office of Hearings and Appeals identification of the case.
(ii) The pertinent PA Manual
reference.
(iii) A statement of the
issue.
(iv) Excerpts of the
decision setting forth the facts established at the hearing.
(6)
Stenographic
record. In all appeal proceedings, a stenographic record of the
proceedings will be kept. The record need not be transcribed unless the
purchase of a transcribed copy is desired by a party or an appeal to
Commonwealth Court is filed and in such case, only if the transcription is
ordered by the Court.
The provisions of this §275.4 issued under sections 201(2)
and 423 of the Public Welfare Code (62 P. S. §§
201(2) and
423); amended under sections
201(2) and 403(b) of the Public Welfare Code (62 P. S. §§
201(2) and
403(b)).
This section cited in 55 Pa. Code §
133.4 (relating to procedures); 55
Pa. Code §
141.41 (relating to policy); 55
Pa. Code §
141.56 (relating to deferred
referral); 55 Pa. Code §
165.81 (relating to fair hearing);
55 Pa. Code §
227.24 (relating to procedures);
55 Pa. Code §
1181.54 (relating to payment
conditions related to the recipient's continued need for care); 55 Pa. Code
§
3490.106 (relating to hearings and
appeals proceedings for reports received by ChildLine prior to July 1, 1995);
55 Pa. Code §
3490.106a (relating to hearings
and appeals proceedings for indicated reports received by ChildLine after June
30, 1995); and 55 Pa. Code §
3490.192 (relating to request for
a hearing from a school employe for indicated reports of student
abuse).