Current through September 24, 2024
(1) Notice of Hearing. In every contested
case, a notice of hearing shall be issued by the Department that shall comply
with T.C.A. §
4-5-307(b) and
shall be served as provided in 1240-5-4-.01(4) of these rules.
(2) The hearing shall be conducted at a
reasonable time, date, and place after adequate written notice has been given
to the appellant.
(a) For contested cases in
the Families First, Food Stamp, TennCare Medicaid and TennCare Standard
programs, adequate written notice shall be sent at a minimum ten (10) days in
advance of the date of the hearing.
(b) The notice of hearing in Child and Adult
Care Food Program appeals, for actions that are subject to administrative
review, is governed under 7 C.F.R. § 226.6(k)(5) and State Rule
1240-5-8-.01(9), and adequate written notice shall be sent at a minimum ten
(10) days in advance of the date of the hearing.
(c) The notice of hearing in Summer Food
Service Program appeals is governed under 7 C.F.R. § 225.13 and State Rule
1240-5-8-.01(8) and adequate written notice shall be sent at a minimum five (5)
days in advance of the date of the hearing.
(d) For Child Support appeals adequate
written notice shall be sent at a minimum fifteen (15) days in advance of the
date of the hearing.
(e) For
Vocational Rehabilitation appeals adequate written notice shall be sent at a
minimum fifteen (15) days in advance of the date of the hearing.
(f) For Blind Services appeals adequate
written notice shall be sent at a minimum fifteen (15) days in advance of the
date of the hearing.
(g) The
hearing on the petition requesting a hearing on the notice to deny, revoke or
restrict an adult day care center license shall be held within sixty (60) days
of the receipt of the petition. The notice of the hearing date shall be sent at
a minimum fifteen (15) days in advance of the date of the hearing.
(h) For all other appeals not otherwise
specified herein, adequate written notice shall be sent at a minimum fifteen
(15) days in advance of the date of the hearing.
(i) The notice periods set forth in this
paragraph may be extended for any individual or all programs by direction of
the Commissioner's designee in his/her sole discretion except where otherwise
limited by statute or federal regulation.
(3) The notice shall include:
(a) The date, time, place, and nature of the
hearing with instructions to the appellant to notify the Appeals and Hearings
Division if he/she is unable to meet the appointment.
(b) A statement of the legal authority and
jurisdiction under which the hearing is to be held, including a reference to
the particular sections of the statutes and rules involved.
(c) A short and plain statement of the
matters asserted. The notice will define the issues and refer to detailed
statements of the matters involved, if available.
(d) Information about hearing
procedures.
(e) The appellant's
option to present his/her case or be represented by a lawyer or another
authorized person.
(f) The
appellant's right to inspect the files of the agency with respect to the matter
under appeal and to copy from the file.
(g) The appellant's right to present written
evidence and testimony and to bring witnesses and members of his/her family to
the hearing.
(h) The process by
which an appellant may petition for reconsideration of an initial or final
order, if applicable.
(i) The
process by which an appellant may appeal an initial order, if
applicable.
(j) The appellant's
right to judicial review, if he/she is dissatisfied with the final order
entered on his/her appeal.
(k)
Supplemented Notice.
In the event it is impractical or impossible to include in
one document every element required for notice, elements such as time and place
of hearing may be supplemented in later written notice.
(4) Service of Notice of Hearing.
(a) In any case in which an appellant in
TennCare Standard or TennCare Medicaid, Families First or Food Stamp has
requested a hearing from the Department, a copy of the notice of hearing shall
be delivered to the party by certified mail, postage prepaid, or by personal
service. Service of notice of the hearing for other programs administered by
the Department shall be by any method permitted or required by law or program
regulations governing those programs.
(b) Service of the notice of hearing for
TennCare Standard or TennCare Medicaid cases shall be made at the address
required to be kept current by the applicant/recipient with the Department by
T.C.A. §§
71-5-106(l) and
110(c)(1), or such other address as the Department of Human Services may have
for applicant/recipients of Families First or Food Stamp or other programs, and
at the address provided with the request for hearing, if different from the
address on file with the Department. However, the Department shall use the best
address known to it, whether provided directly by the applicant/recipient or
obtained indirectly.
(c) In the
event of a motion for default where there is no indication of actual service on
a party, the following circumstances will be taken into account in determining
whether to grant the default:
1. Whether any
other attempts at actual service were made;
2. Whether and to what extent actual service
is practicable in any given case;
3. What attempts were made to make contact
with the party by telephone, by regular mail, or otherwise; and
4. Whether the Department has actual
knowledge or reason to know that the party may be located elsewhere than the
address to which the notice was mailed.
(5) Filing of Documents. When a contested
case is commenced, if the matter is being heard by the Administrative
Procedures Division, the Department shall provide the Administrative Procedures
Division with all the papers that make up the notice of hearing and with all
pleadings, motions, and objections, formal or otherwise, that have been
provided to or generated by the Department concerning that particular case.
Legible copies may be filed in lieu of originals.
(6) Answer. The party may respond to the
matters set out in the notice or other original pleading by filing a written
answer with the Department in which the party may:
(a) Object to the notice upon the ground that
it does not state acts or omissions upon which the Department may
proceed;
(b) Object on the basis of
lack of jurisdiction over the subject matter;
(c) Object on the basis of lack of
jurisdiction over the person;
(d)
Object on the basis of insufficiency of the notice;
(e) Object on the basis of insufficiency of
service of the notice;
(f) Object
on the basis of failure to join an indispensable party;
(g) Generally deny all the allegations
contained in the notice or state that he/she is without knowledge as to each
and every allegation, both of which shall be deemed a general denial of all
charges;
(h) Admit in part or deny
in part allegations in the notice and may elaborate on or explain relevant
issues of fact in a manner that will simplify the ultimate issues;
and
(i) Assert any available
defense.
(7) Amendment
to Notice.
(a) The notice or other original
pleading may be amended within two (2) weeks from service of the notice and
before an answer is filed, unless the respondent shows that undue prejudice
will result from this amendment. Otherwise the notice or other original
pleading may only be amended by written consent of the respondent or by leave
of the hearing official or Commissioner's designee, and leave shall be freely
given when justice so requires.
(b)
No amendment to the notice may introduce a new statutory or regulatory basis
for denial or termination of enrollment without original service and running of
times applicable to service of the original notice.
(c) The hearing official shall not grant a
continuance to amend the notice or original pleading if such would prejudice a
respondent's right to a hearing and Initial Order within any mandatory time
frames.
(8) Amendments
to Conform to the Evidence.
(a) When issues
not raised by the pleadings are tried by express or implied consent of the
parties, they shall be treated in all respects as if they had been raised in
the pleadings. Such amendment of the pleadings as may be necessary to cause
them to conform to the evidence and to raise these issues may be made upon
motion of any party at any time; but failure to amend for this reason does not
affect the result of the determination of these issues.
(b) If evidence is objected to at the hearing
on the ground that it is not within the issues in the pleadings, the hearing
official may allow the pleadings to be amended unless the objecting party shows
that the admission of such evidence would prejudice his defense. The hearing
official may grant a continuance to enable the objecting party to have
reasonable notice of the amendments. However, when the individual is not
represented by counsel, the burden cannot be put on such individual to object
to the State's trying of cases without proof and legal authorities set out in
the pleadings, and the hearing official shall rule on whether to allow
additional evidence and the need for continuances to enable the respondent
further time to address the new grounds.
Authority: T.C.A. §§
4-5-202; 4-5-301, 36-5-701 et seq.,
36-5-1001 - 1003, 71-1-105(12), 71-2-401 et seq., 71-3-154, 71-3-509, 71-4-508,
71-4-610, 71-5-106, 71-5-110 and 71-5-305; 7 U.S.C. §§ 2014, 2015,
2020(e)(10); 20 U.S.C. § 107b(6) and 107d-1; 29 U.S.C. § 722(a)(5)
and (c)(2); 42 U.S.C. §§ 601 et seq.; 42 U.S.C. §§ 651 et
seq.; 42 U.S.C. § 1397; 42 U.S.C. §§ 1396 et seq.; 42 U.S.C.
§§ 1761 and 1766; 42 U.S.C. § 6851; 42 U.S.C. § 8624; 42
U.S.C. § 9901; 7 C.F.R. § 225.13(b)(6) and 226.6(k)(5)(vi) and
226.6(l)(2); 7 C.F.R. § 273.15(l); 10 C.F.R. § 440.1; 34 C.F.R.
§ 361.57(e); 34 C.F.R. §§ 395 et seq.; 42 C.F.R. § 431.240;
45 C.F.R. § 205.10(a)(8); and 45 C.F.R. § 400.54.
