Rules & Regulations of the State of Tennessee
Title 0770 - Housing Development
Chapter 0770-01-05 - Housing Choice Voucher Program
Section 0770-01-05-.28 - COMPLAINTS, CONFERENCES, APPEALS (24 C.F.R. 982.54(d)(2), (13); 982.554; 982.555(a-f)

Universal Citation: TN Comp Rules and Regs 0770-01-05-.28

Current through September 24, 2024

(1) Complaint Intake and Response. The THDA strives to offer excellent service and response to applicants and participants of the HCV Program, but inevitably complaints will arise periodically. The THDA must balance the funding available to provide adequate staffing and resources when managing complaints against the needs of applicants and participants. Therefore, due to the potential administrative burden, the THDA does not respond individually to complaints about a general policy change or class grievance which applies to all families uniformly, such as a change to the payment standard. In responding to other complaints lodged against a person, policy, or process related to the administration of the HCV program, the THDA will follow the following process:

(a) Initially, a complaint may be filed verbally with the assigned Rental Assistance Specialist (RAS) at the field office level. Details of the complaint and the RAS verbal response to the complaint will be entered into the HCV software system, along with the date and approximate time of the call.
1. If the complaint involves an activity that is eligible for an informal review or informal hearing, the initial response will be to explain the informal review or informal hearing procedures to the applicant or participant. If the applicant or participant chooses not to file a request for an informal review or informal hearing, the complaint will not be heard.

2. If an applicant or participant has a pending appeal, a complaint will not be heard that is regarding the issue that is pending appeal.

(b) If the applicant or participant expresses dissatisfaction with the RAS response to their complaint, the RAS will refer the call to the Rental Assistance Manager (RAM) at the field office level.
1. The RAM will respond to all complaints within no more than fourteen (14) calendar days.

2. Dependent upon the nature of the complaint, the RAM may choose to respond by phone, schedule an in-person case conference at the field office location, or send a THDA Complaint Intake form to the participant.

3. If the RAM responds verbally, the response will be entered into the HCV software system.

4. If the RAM responds verbally or holds a case conference and the applicant or participant is dissatisfied with the outcome, the RAM will send the applicant or participant a THDA Complaint Intake form to file a written complaint.

(c) When an applicant or a participant files a written complaint, the THDA or executive management will review it and a written response will be made on the THDA Complaint Response Form within thirty (30) days.

(d) The THDA does not accept complaints outside of this process. Once a complaint has been submitted and reviewed by the central or executive management team, the complaint is closed and no further THDA response on that specific complaint will be offered, either verbally or in writing. Informal reviews and informal hearings are only offered in the instances offered in this Plan and are not necessarily a part of the complaint process.

(2) Case Conferences. A case conference is an informal, documented meeting with a THDA Rental Assistance Coordinator, Manager, or designee. The case conference appointment will be conducted via teleconference. The THDA will document the significant element of the discussion in a case conference report and require the participant to sign the report, which will be placed in the tenant file to verify the discussion occurred.

(a) Case Conferences Resulting from a Complaint. Staff may schedule a case conference as a response to a complaint made by an applicant or participant.

(b) Case Conference to Educate on Policies or Procedures. A case conference may be held when an applicant or participant expresses a lack of understanding of a particular policy or procedure.

(c) Case Conference for Suspected Program Violations. A case conference may also be held when the THDA suspects a program violation has occurred. The conference will be held to gather additional information or to explain program requirements to the family before proceeding with a termination action. If a conference is held for a documented or suspected program violation, and the violation continues after the case conference is held, the THDA's regular termination processes will be followed.

(d) Case Conference to Clarify Rental Calculation. A case conference may be held when an applicant or participant expresses a lack of understanding of the Housing Assistance Payment (HAP) calculation. See the Informal Hearing section, Rule 0770-01-05-.28(4), for additional information.

(e) Case Conference to Supply Documentation. A case conference may be scheduled to allow the participant to submit required documents before and/or after a proposed termination is issued. If all documents are received, the THDA will process the certification for continued assistance. However, if the proposed termination letter has been issued or a hearing date has been scheduled, the THDA will rescind the proposed termination and cancel the informal hearing.

(3) Informal Reviews for Applicants (24 C.F.R. 982.54(d)(2), 982.554, and 982.555). Under the federal regulations for the HVC Program, an applicant may request an informal review only for certain adverse decisions made by the THDA towards the applicant. Full informal hearings are not afforded to applicants, unless it is a denial regarding the noncitizen rule.

(a) Opportunities for Informal Review. An applicant may only request an informal review for the following the THDA denials of assistance:
1. Denial of the listing of an applicant on a waiting list;

2. Denial of a wait-list preference;

3. Denial of participation in the HCV Program of an applicant who has applied for assistance but for whom no HAP contract has been executed between the THDA and a landlord;

4. Denial or withdrawal of a voucher;

5. Refusal to enter into a HAP contract;

6. Refusal to approve a lease;

7. Refusal to process or provide assistance under portability procedures; or

8. Refusal of VAWA protections.

9. No opportunity for review is required for discretionary administrative decisions, general policy issues, class grievances, expiration of the voucher, denials of extensions of the voucher term, or determinations of the appropriate number of bedrooms (family unit size/subsidy standard) to be entered on the voucher when the decision is made in compliance with the THDA's occupancy/subsidy standards.

(b) Requests for an Informal Review. All requests for an informal review must be submitted in writing to the THDA postmarked no later than fourteen (14) days from the date of the denial letter and must be in compliance with the instructions for requesting an informal review as outlined in the denial letter, otherwise the request will be denied.
1. The THDA will also accept informal review requests by email, fax, or hand delivery as long as the THDA receives such requests no later than 14 days from the date of the denial letter.

2. If the applicant household claims that they did not receive the denial letter due to circumstances beyond their control, the applicant must submit such proof to the THDA in accordance with the Mail Policy. However, the THDA cannot be responsible for third-party errors or any negative consequences that may impact the applicant resulting from the third-party error. Therefore, if the applicant submits adequate proof and the applicant is granted an informal review in which the hearing officer rules in the applicant's favor, the applicant understands that the applicant household may have to be returned to the top of the waiting list to await adequate funding.

(c) Notification of an Informal Review Appointment. When an informal review is properly requested, the THDA will notify the applicant of the date and time of the informal review by a letter sent by United States Postal Service (USPS).
1. Appointment Letter.
(i) Delivery. The appointment letter will be sent by regular mail delivery to the last known address reflected in the applicant file, unless a different mailing address is clearly noted on the review request letter.
(I) Delivery is complete upon deposit in a mailbox.

(II) If the client requests proof of delivery, the delivery may be established prima facie by affidavit or certificate of service of mailing by the staff person who mailed the notice.

(III) See Mail Policy.

(ii) The appointment letter will specify:
(I) Delivery is complete upon deposit in a mailbox;

(II) Sufficient detail regarding the evidence or events that occurred to require the denial of assistance to afford the applicant the opportunity to fully prepare a defense prior to the review;

(III) That the appointment may be conducted via teleconference or in person. The applicant will have an opportunity to present written or oral objections to the THDA's decision. When the informal review is conducted via teleconference, written objections must reach the THDA at least three (3) business days before the appointment; and

(IV) Any documentation the THDA determines will aid in reviewing the case so that the documentation may be acquired prior to the date of the review.
I. An informal review appointment will not be delayed for document collection unless the applicant or the applicant's representative contacts the THDA and verifies that necessary documentation cannot be accessed prior to the date of the review for reasons outside of the applicant's control. The failure to begin collecting or requesting documents in a timely manner before the review date is not considered an adequate reason to delay a review.

(d) Date of Informal Review Appointment. The date of the informal review appointment will be on or before thirty (30) days from the date the THDA receives the written request for the informal review that allows proper notice to the applicant.

(e) Rescheduling the Informal Review. The Informal Review appointment may only be rescheduled when the applicant can document that a medical emergency or death in the immediate family occurred on or near the date of the appointment and prevented the applicant from attending the appointment as scheduled.
1. The applicant household should contact the THDA at least twenty-four (24) hours in advance of a missed appointment, whenever possible.

2. Regular medical appointments are not considered a medical emergency.

3. The appointment may only be rescheduled one time; a second missed appointment will result in denial of the applicant household to the HCV Program, without the possibility of any informal review.

(f) Informal Review Process.
1. Purpose. The purpose of the informal review is to determine whether the THDA staff's adverse decision in determining an applicant's eligibility for an admission preference or the HCV program was in accordance with this Administrative Plan and HUD regulations.

2. The review may be conducted by any staff member designated by the THDA, as long as the staff member is not the person or a subordinate of the person who made or approved the decision under review.

3. Prior to the date and time of the informal review the designated THDA staff member will:
(i) Review the file and any other documentation assembled or prepared by the THDA staff members regarding the adverse decision under review;

(ii) Interview the THDA staff member responsible for the adverse decision, if necessary; and

(iii) Collect any additional documentation necessary to render a decision under the informal review.

4. During the informal review, the applicant will be given the opportunity to present objections regarding the circumstances leading to the denial.

5. The THDA may establish time limits for the presentation of objections.

6. All testimony and documentation must be collected and presented prior to or at the informal review. No additional documentation or testimony will be entered into the record after the review proceeding is closed.

7. The informal review may be recorded, but it is not required.

8. A formal transcript is not required.

(g) Preponderance of the Evidence. Decisions in an informal review will be based on a preponderance of the evidence collected prior to or presented at the informal review. Preponderance of the evidence is defined as evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it, or in other words, evidence that as a whole shows that the fact sought to be proved is more probable than not. Preponderance of evidence may not be determined by the amount of evidence, but by the greater weight of all evidence.

(h) Notification of Informal Review Decision. Within fourteen (14) days of the informal review, the THDA will issue a written determination that upholds, modifies, or overrules the original adverse decision. The decision letter will include specific reasoning used to make the determination. The letter will be sent to the applicant by USPS regular delivery mail and/or electronic notification (email/fax) to the last known address [(residence/email)] reflected in the THDA's file for the applicant, unless otherwise indicated by the applicant.
1. Delivery of the notice by mail is complete upon deposit in a mailbox or upon posting. If the applicant requests proof of delivery, the delivery may be established prima facie by affidavit or certificate of service of mailing by the staff person who mailed the notice.

(i) Opportunity for Appeal of Informal Review Decision. The Informal Review Decision is final and no other opportunity for review of a denial of admission is required under state or federal regulation.

(4) Informal Hearing for Participants (24 C.F.R. 982.54(d)(2), 982.554, 982.555). When the THDA makes certain adverse decisions towards a HCV Program participant, HUD regulations outline when those adverse decisions give rise to the right for the participant to request the opportunity for an informal hearing.

(a) Opportunities for an Informal Hearing. A program participant may appeal the decision and request an informal hearing for the following actions by the THDA. However, for determinations 1, 2, and 3 below, if the participant objects to the determination, the participant may ask for an explanation of the basis of the THDA's determination and the THDA will first hold a case conference with the participant to explain the determination. If after the case conference the participant still does not agree with the determination, the participant may request an informal hearing on the decision.
1. A determination of the family's annual or adjusted income, and the use of such income to compute the Total Tenant Payment (TTP) or Subsidy Standard Calculation and the Housing Assistance Payment.
(i) An informal hearing will not be offered when the TTP or subsidy standard change under consideration is the result of a general THDA policy change. General policy changes are considered class grievances, and thus, not subject to individual review.

2. A determination of the appropriate utility allowance, if any, for tenant-paid utilities from the THDA utility allowance schedule.

3. A determination of the family unit size under the THDA subsidy standards.

4. Denial or Termination of Assistance to Noncitizens.

5. Termination of assistance for a participant family due to the family's action or failure to act;

6. Termination of assistance due to the absence of the participant family from the assisted unit for a period longer than what is permitted by the THDA's policy and HUD rules.

(b) Discretionary Administrative Decisions. No opportunity for a hearing is required for discretionary administrative decisions by the THDA, general policy issues, class grievances, establishment of the THDA schedule of utility allowances for families in the program, determination not to approve an extension or suspension of a voucher term, determination not to approve a unit or tenancy, determination that the unit is not in accordance with Housing Quality Standards (HQS) because of family size, determination by the THDA to exercise or not to exercise any right or remedy against an owner under a Housing Assistance Payment (HAP) contract, or determination that assisted unit is not in compliance with HQS. However, the THDA will provide the opportunity for an informal hearing for a decision to terminate assistance for a breach of the HQS caused by the family.

(c) Requests for Informal Hearings. Instructions for requesting an informal hearing are included in correspondence to the participant regarding the adverse decision.
1. All requests for an informal hearing must:
(i) Be submitted in writing to the THDA as outlined on the Notice of Termination; and

(ii) Be timely.
(I) If request is by mail, the request must be postmarked no later than fourteen calendar (14) days from the date of the termination letter.

(II) If request is by email, fax, or hand delivery, the THDA must receive the request within 14 calendar days of the date of the termination letter.

(III) If the date of delivery is unclear, the THDA will not bear the responsibility for determining timeliness. In the case that the THDA receives the request past the deadline and it cannot be clearly determined to be delivered timely, it will be considered untimely.

(d) Notification of Informal Hearing Appointment. When an informal hearing is properly requested, the THDA will notify the participant of the date, time, and location for the informal hearing by a letter sent via the United States Postal Service (USPS) and/or electronic notification (email/fax).
1. Appointment Letter.
(i) Delivery. The appointment letter will be sent via electronic or regular mail delivery to the last known address (mailing/email) reflected in the participant file, unless the participant notifies the THDA of a different mailing/email address.
(I) Delivery is complete upon deposit in a mailbox.

(II) If the client requests proof of delivery, the delivery may be established prima facie by affidavit or certificate of service of mailing by the staff person who mailed the notice.

(ii) The appointment letter will specify:
(I) That, prior to the hearing, the participant and the THDA may examine or copy, at each party's own expense, any documents of the other party that are directly relevant to the hearing;

(II) That if either party fails to make a document available for examination on request of the other party, then such document may not be relied on at the hearing;

(III) That the participant will have an opportunity to present written or oral objections to the THDA's decision;

(IV) That the participant household may, at their own cost, elect to have an attorney or other representation at the informal hearing; and

(V) Any documentation the Hearing Officer determines will aid in reviewing the case so that the documentation may be acquired prior to the date of the hearing; and
I. A hearing will not be delayed for document collection unless the participant or the participant's representative contacts the Hearing Officer and verifies that necessary documentation cannot be accessed prior to the date of the hearing for reasons outside of the participant's control. The failure to begin collecting or requesting documents in a timely manner before the hearing date is not considered an adequate reason to delay a hearing.

(VI) If any other household members, in addition to the head of household, are necessary for the hearing.

2. Date of Informal Hearing. Since the THDA's Housing Choice Voucher Program is multijurisdictional, informal hearings may be conducted in person, or via teleconference. When the THDA receives the written request for the informal hearing, the informal hearing will be scheduled within 30 days or for the next hearing date that allows proper notice to the participant. At the THDA's discretion, the review may be held at the THDA's main office in Nashville.

3. Informal Hearings regarding Repayment Agreements may be conducted via telephone at the participant's discretion.

(e) Rescheduling the Hearing.
1. The hearing may only be rescheduled when the participant can document that a medical emergency or death in the immediate family occurred on or near the date of the appointment and prevented the participant from attending the hearing as scheduled.

2. The household should contact the THDA at least twenty-four (24) hours in advance of a missed appointment, whenever possible.

3. Regular medical appointments are not considered a medical emergency.

4. The hearing may only be rescheduled one time; a second missed hearing will result in the decision of the THDA being upheld, without the possibility of an informal hearing.

5. The THDA may also only reschedule the hearing once for a medical emergency or death in the immediate family, otherwise, if the THDA fails to be present at the hearing, the decision of the THDA will be overturned, with the exception of informal hearings for Repayment Agreements where the presence of the THDA's staff is not necessary.

(f) Informal Hearing Process.
1. Purpose. The purpose of the informal hearing is to resolve participant disputes with the THDA without legal action and to address and/or correct any THDA alleged errors and/or discrepancies that may have occurred in the decision-making process.

2. For Determination of Calculations. The purpose of an informal hearing for Total Tenant Payment, subsidy standards, and utility calculations is to ensure that the THDA has not made an error in calculation, income and household composition is correct, and to review the calculation with the participant or their representative.
(i) The Hearing Officer will explain the verification documents that were used in determining the calculations, the HUD and the THDA rules and regulations that govern the calculations, and the forms used.

3. Hearing Officer. Any staff member designated by the THDA, as long as the staff member is not the person or a subordinate of the person who made or approved the decision under review, may serve as the Hearing Officer for an Informal Hearing.

4. Ex Parte Communication. The Hearing Officer must avoid even the appearance of an ex parte communication before, during, and even after the hearing, and therefore may not contact or respond directly to a member of the THDA's staff, a participant, or other party to an informal hearing while the appeal is pending.
(i) Definition. Contact between the Hearing Officer and a party to the informal hearing, or a representative of a party, regarding the merits of a matter under review, without notice and opportunity for all parties to participate.

(ii) Purpose. The purpose of the prohibition is to ensure that:
(I) No person has influence over or the opportunity to persuade the Hearing Officer;

(II) All parties have the opportunity to rebut any facts considered by the Hearing Officer; and

(III) All facts considered by the Hearing Officer are on the record.

5. During the Informal Hearing.
(i) During the informal hearing, the Hearing Officer will give the THDA and the participant the opportunity to present evidence, objections, either written or oral, to call witnesses, including the THDA's staff members, landlords, other household members, and others knowledgeable about the circumstances leading to the adverse decision, and to present other evidence.

(ii) The THDA may establish time limits for the presentation of evidence and the calling of witnesses.

(iii) Evidence.
(I) The Hearing Officer will base the finding of fact on the kind of evidence on which a reasonable and prudent person would rely.

(II) Evidence does not need to rise to the level of that which would be admissible in a judicial hearing, but the Hearing Officer may exclude evidence that is irrelevant, immaterial, or unduly repetitious.

(III) Hearsay Evidence. Hearsay evidence is allowed as long as:
I. It is the type of evidence a reasonable and prudent person would rely;

II. It does not violate a participant's right to rebut or confront witnesses; and

III. It is supported, since hearsay evidence alone is insufficient to support a finding of fact.

(IV) All testimony and documentation must be presented at the hearing, however, the record may be held open for a short period of time, not to exceed 14 calendar days, after the hearing for the limited purpose of accepting additional evidence, requested by the Hearing Officer at the hearing. Further evidence will not be considered or entered into the record after the record is closed.

(iv) The informal hearing may be recorded, but it is not required.

(v) A formal transcript is not required.

6. Additional Termination Cause Found During Informal Hearing Process.
(i) If any additional termination causes are discovered between the time the termination notice is mailed and the hearing appointment, another termination notice will be sent to the participant, the participant will be provided the same opportunity for discovery prior to the hearing, and any new causes will be considered by the THDA's Hearing Officer at the same hearing as the original to reduce administrative burden and cost.
(I) If there is not time for an updated termination letter to be mailed before the hearing, the hearing officer may notify the participant of any additional termination causes at the hearing and the participant may choose to proceed without any prior notification or opportunity for discovery or the participant may request an additional hearing with notice at another time for any additional termination causes.

7. Hearing Officer Decision.
(i) Disputes of fact in rendering a decision at an informal hearing are based on a preponderance of the evidence.

(ii) Preponderance of the Evidence. Evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it, or in other words, evidence that as a whole shows that the fact sought to be proved is more probable than not. Preponderance of evidence may not be determined by the number of witnesses or amount of evidence, but by the greater weight of all evidence.

(iii) The decision must be based solely on the evidence presented during the hearing or matters officially noted, with the exception of specific evidence requested and defined at the hearing for which the Hearing Officer keeps the record open for a limited time, not to exceed fourteen (14) calendar days. However, the record cannot be left open for a participant to complete or provide documentation or verifications, which should have already been provided and are subject to the hearing, unless it is the THDA that is requesting it.

(g) Effect of Decision.
1. The THDA is not bound by a hearing decision that:
(i) Concerns a matter that the THDA is not required to provide an opportunity for an informal hearing.

(ii) Concerns a matter that exceeds the authority of the Hearing Officer.

(iii) Is contrary to local, state, or federal law or HUD rules and regulations.

2. If the THDA determines that the agency is not bound by a hearing decision, the THDA will promptly notify the family of the determination and the reasons for the determination.

3. The THDA may appeal the hearing officer's decision by requesting a contested case hearing before an Administrative Law Judge.

(h) Notification of Informal Hearing Decision. Within fourteen (14) days of the informal hearing, after the informal hearing is closed, the THDA will issue a written determination that upholds, modifies, or overrules the original adverse decision. The decision letter will include specific reasoning used to make the determination. The letter will be sent to the participant by USPS regular delivery mail and/or electronic notification (email/fax) to the last known address (residence/email) reflected in the THDA's file for the participant, unless otherwise indicated by the family.
1. Delivery of the notice by mail is complete upon deposit in a mailbox or upon posting. If the participant requests proof of delivery, the delivery may be established prima facie by affidavit or certificate of service of mailing by the staff person who mailed the notice.

2. Opportunity for Appeal of Informal Hearing Decision. The notification will also state that the participant may further appeal the THDA's decision by requesting a contested case hearing before an Administrative Law Judge under the Tennessee Uniform Administration Procedures Act, except for calculation determinations.

(i) A contested case hearing is not offered and no other opportunity for review is required under state or federal regulation for total tenant payment, subsidy standard, and utility allowance calculations. The decision by the THDA's Hearing Officer is final.

(ii) Instructions for requesting a contested case hearing are included in the correspondence to the participant regarding the informal hearing decision including the name, address, and telephone number of the person to contact to request a contested case hearing.

(iii) All requests for a contested case hearing must:
(I) Be submitted in writing; and

(II) Be timely.
I. If request is by mail, the request must be postmarked no later than fourteen (14) days from the date of the Informal Hearing Decision.

II. If request is by email, fax, or hand delivery, the THDA must receive the request within fourteen (14) days of the date of the Informal Hearing Decision.

III. If the date of delivery is unclear, the THDA will not bear the responsibility for determining timeliness. In the case that the THDA receives the request past the deadline and it cannot be clearly determined to be delivered timely, it will be considered untimely.

(iv) The notification also states that the participant may, at the participant's own cost, elect to have a lawyer or other representative represent him in connection with the contested case hearing.

(5) Commencement of Contested Case Proceedings under the Administrative Procedures Act (T.C.A. §§ 4-5-301 et. seq.). All proceedings concerning contested case hearings shall be conducted before an administrative judge in accordance with the Secretary of State's rules governing Contested Case Hearings, Chapter 1360-04-01, except where state or federal law requires or the THDA's rules provide specific guidance.

(a) Commencement of Action. A contested case proceeding is commenced when an affected person submits a request for appeal of the decision issued by the THDA's hearing officer. The request for appeal must be filed in accordance with the instructions provided in the decision letter provided by the hearing officer and be postmarked or received by the THDA no later than fourteen (14) days from the date of the decision letter.

(b) Notice of Hearing. A Notice of Hearing, complying with the requirements of T.C.A. §§ 4-5-307(b), will be served no less than fourteen (14) days prior to the date of the hearing.
1. Should the notice provided be found insufficient for any reason, the participant's sole remedy is the right to a continuance of the proceedings and a notice that addresses any insufficiency.

2. Notice is served by placing the notice in the U.S. mail via first class mail or secured electronic mail to the address the THDA has been provided by the participant.
(i) The participant shall bear the burden of proof where it is alleged that the address (mailing or email) to which the THDA mailed the notice was not the proper address, or where the participant argues that the notice was not received due to circumstances beyond the participant's control.

(ii) Sufficient proof shall include, but not be limited to, an affidavit, sworn and notarized, from the postmaster for the local post office responsible for delivering the mail to the participant's address that there have been problems with delivery that might have caused the notice to not be properly delivered. In cases of electronic communication (email/fax), where the participant denies receipt, the THDA may review internal records for proof of delivery.

(c) Interlocutory Review Prior to Hearing. Any party wishing to seek interlocutory review of an administrative judge's decision on a preliminary matter shall make application to the administrative judge for permission to seek such review.
1. Interlocutory review should not be granted except where the issue is one for which the THDA's determination of the issue is particularly important.

2. Interlocutory reviews must be conducted within fourteen (14) days of the date granted or they will be deemed denied, unless the Executive Director extends the time within which to consider the review.

(d) Discovery. Given the informal nature of these proceedings the following tools of discovery will be the only tools available.
1. The participant shall provide, upon written request, copies of any and all documents that the participant expects to rely upon or that may be entered as exhibits in the hearing.

2. The THDA shall make available to the participant, or the participant's legal representative, the participant's entire file, any other documents not otherwise in the file that the THDA expects to use in the hearing, or any other documents that the THDA may possess that reasonably relate to the determination of the matter, upon request of the participant.

3. Neither party will be permitted to depose any witness, except evidentiary depositions for those witnesses who are entitled to avoid testifying in the proceeding by law or who will be unavailable on the date of the hearing.

4. An administrative judge may provide for additional discovery tools, but only upon clear and convincing evidence from the motioning party that limiting discovery to the tools provided herein will result in manifest prejudice to the moving party's case.
(i) Manifest prejudice does not include uncertainty as to what specifically the individual witness may testify to in the hearing.

(ii) Where possible, the administrative judge shall provide a method of discovery that avoids the lengthy delay of depositions, such as a statement of expected testimony.

(e) Evidence. As provided in 24 C.F.R. 982.555(e)(5), all evidence will be subject to admission based upon whether such evidence is reasonable. The test will be whether the evidence would be relied upon by the reasonable person. The fact that evidence might be hearsay, might contain hearsay, or might otherwise be inadmissible under the Rules of Evidence is irrelevant to this determination as long as it does not violate a participant's right to rebut or confront witnesses and it is supported, since hearsay evidence alone is insufficient to support a finding of fact.

(f) Default Judgment. Where a party fails to appear at the hearing, the other party may move for a default judgment. If the petitioner fails to appear the respondent will be granted a dismissal. If the respondent fails to appear, the petitioner will be granted judgment upon proof sufficient to show by a preponderance of the evidence, that the allegations in the Notice of Hearing are substantiated.

(g) Filing of Orders. All orders at any stage of the appeals process must be filed within thirty (30) days of the date that the proof is closed, which is generally the date of the hearing.
1. If the proof is left open for late filed exhibits, the time for such exhibits must be within fourteen (14) days or at the earliest time such proof will be available, but not longer than thirty (30) days absent an agreement of the parties.

(6) Eligibility for Payment While Appeal Is Pending. While an appeal is pending, the THDA will continue to make housing assistance payments and utility assistance payments on behalf of the participant, where possible. However, Program regulations prohibit the THDA from making payments through the appeals process for certain violations that have not been rectified. However, if the participant appeals the termination, the THDA will give the participant one final opportunity to come into compliance in order to receive payments through the appeals process, as outlined in the sections below.

(a) Housing Quality Standards (HQS) Repairs. Where the participant has caused HQS violations that qualify as an emergency repair item, the THDA is prohibited from making payments while the unit continues to be uninhabitable. If emergency repairs are made, the participant may notify the THDA and the THDA will give the participant one opportunity for an inspection to verify the emergency repair has been completed. If the inspector certifies the repair is complete, the THDA will resume payments from the date of such certification through the appeal process. The THDA is also prohibited from making payments on a unit where the deadline for the inspection has passed. Here again, the THDA will give the participant one opportunity for an inspection in order for payments to resume. The one opportunity for an inspection may not be rescheduled, unless the participant provides the THDA with evidence of an emergency.

(b) Recertification. If the participant fails to cooperate during the recertification process, which prevents the THDA from completing the recertification by the deadline, the THDA is prohibited from continuing to make payments after such deadline. If the participant requests an informal hearing, the THDA will make one final request for the necessary information in order to complete the recertification. If the participant subsequently comes into compliance, the THDA will recommence payments from the date of the completion of the requirements for recertification through the appeal process. Retroactive payments may only be made if the participant proves that the THDA possessed all documentation required under these rules for recertification.

(c) Participant Moves without Notice. If the participant moves without following the proper procedures set forth in these rules, the THDA is prohibited from continuing to make payments on the unit the participant has vacated. In order for payments to continue, the participant must either appeal claiming that the participant has not moved or the participant must follow the procedures to have a new unit approved. If the THDA continues payments based upon the assertion that the participant has not moved, but the THDA prevails in the hearing, the participant will owe the THDA a debt equal to the improper payments made by the THDA.

(d) Termination of Tenancy by Landlord.
1. If the landlord has legally terminated the tenancy of a participant, either by obtaining a court-ordered eviction or by properly notifying the tenant of non-renewal of the lease under the terms and conditions of the lease, the THDA is prohibited from continuing to make payments on that particular unit.

2. If a participant's assistance is terminated due to a landlord legally terminating tenancy by court-ordered eviction or legally terminating the lease at the end of a lease term and the participant appeals, the THDA will relocate the participant to a new unit through the appeal process, provided the participant follows the procedures to have a new unit approved.

(e) Payment Calculation or Subsidy Standard Appeals. Where the participant appeals the THDA's determination of the total tenant payment or the subsidy standard, the THDA shall continue payment under the standard most favorable to the participant.
1. Should the THDA prevail in the appeal of the payment calculation or subsidy standard, the participant will owe the THDA a debt equal to the overpayment of assistance.

(f) Payment of Assistance Continuing after Termination. In all cases, the THDA may require a participant to repay the THDA for a debt incurred as a result of continuing payment pending adjudication of the participant's appeal.
1. THDA will hold a participant responsible for a debt that is adjudicated as owed to the THDA in the hearing process.

2. If the THDA is found to have improperly terminated the payments, the THDA will make retroactive repayments sufficient to make the participant whole.

Authority: T.C.A. §§ 13-23-104 and 13-23-115(18), 42 U.S.C. § 1437, and 24 C.F.R., Part 982.

Disclaimer: These regulations may not be the most recent version. Tennessee may have more current or accurate information. We make no warranties or guarantees about the accuracy, completeness, or adequacy of the information contained on this site or the information linked to on the state site. Please check official sources.
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