4.802.61
MANAGEMENT OF
STATE-LEVEL HEARINGS
A. Scheduling
1. The SNAP fair hearings unit at the
Colorado Department of Human Services (CDHS) or the Office of Administrative
Courts (OAC), if so designated by CDHS, shall arrange the time, date, and place
of the state-level fair hearing so that the hearing is accessible to the
household. At least ten (10) calendar days prior to the hearing, advance
written notice shall be provided to all parties involved to permit adequate
preparation of the case. The household, however, may request less advanced
notice to expedite the scheduling of the hearing. The notice shall:
a. Advise the household or its representative
of the name, address, and phone number of the person to notify in the event it
is not possible for the household to attend the scheduled hearing.
b. Specify that the household's hearing
request will be dismissed if the household or its representative fails to
appear for the hearing without good cause.
c. Include a copy of the information
outlining CDHS' state-level fair hearing procedures.
d. Explain that the household may examine the
case file prior to the hearing.
2. Hearing requests for households that plan
to move from the area, such as migrant farm workers, shall be processed faster
than others, if necessary, to enable them to receive a decision and any
appropriate restoration of benefits before they leave the area.
3. The administrative adjudicator shall
complete the hearing no more than twenty-five (25) calendar days from when the
SNAP fair hearings unit received the notice of appeal. The household may
request and is entitled to receive a postponement (also referred to as a
continuance) of the scheduled hearing. The postponement shall not exceed 30
days and the time limit for action on the final agency decision may be extended
for as many days as the hearing is postponed. A county may not request and is
not entitled to receive a postponement.
4. The administrative adjudicator may respond
to a series of individual requests for hearings by conducting a single group
hearing related to SNAP appeals. The snap fair hearings unit may consolidate
only SNAP related cases where individual issues of fact are not disputed and
where related issues of state and/or federal law, regulation, or policy are the
sole issues being raised. In all group hearings, the regulations governing
individual hearings shall be followed. Each individual household shall be
permitted to present its own case or have its case presented by a
representative.
B.
Hearings Conducted by Phone
The hearing may be conducted by telephone using conference
call techniques or by video conference unless one of the parties objects to
either of these methods. If a hearing is held by telephone using conference
call techniques or by video conference, the rules of procedure (including a
recording of the hearing) shall be the same as a face-to-face
hearing.
C. Attendance
The hearing shall be attended by a representative of the
local office and by the household and/or its representative. The hearing may
also be attended by friends or relatives of the household if the household so
chooses. The administrative adjudicator shall have the authority to limit the
number of persons in attendance at the hearing if space limitations
exist.
D. Administrative
Adjudicator
The administrative adjudicator shall:
1. Administer all oaths or affirmations as
required by the State;
2. Ensure
all relevant issues are considered;
3. Request, receive, and make part of the
record all evidence determined necessary to decide the issues being
raised;
4. Regulate the conduct and
course of the hearing consistent with due process to ensure an orderly
hearing;
5. Order, where relevant
and useful, an independent medical assessment or professional evaluation from a
source mutually satisfactory to the household and the local office;
6. Provide a hearing record and prepare and
file an initial hearing decision with the Office of Appeals (OOA) which shall
serve each party with a copy of the initial
decision.
4.802.62
Hearing Denials or
Dismissals
A. CDHS shall not deny or
dismiss a request for a hearing unless:
1. The
request is not received within the time period specified in Section
4.802.1.
2. The request is
withdrawn in writing by the household or its representative; or,
3. The household or its representative fails,
without good cause, to appear at the scheduled hearing.
B. The administrative adjudicator shall not
enter a default against any party for failure to file a written answer to the
notice of hearing but shall base the initial decision upon the evidence
presented at the hearing.
C. When
the administrative adjudicator dismisses an appeal for reasons other than
failure to appear, the decision of the administrative adjudicator shall be an
initial decision, which shall not be implemented pending review by the Office
of Appeals and entry of a final agency decision.
D. When an appellant fails to appear at a
duly scheduled hearing, having been given proper notice, and without having
given timely advance notice to the administrative adjudicator of acceptable
good cause for inability to appear at the hearing at the time, date and place
specified in the notice of hearing, then the appeal shall be considered
abandoned, and an order of dismissal shall be entered by the administrative
adjudicator and served upon the parties by the Office of Appeals (OOA). The
order of dismissal for failure to appear shall not be implemented pending
review by the OOA and entry of a final agency decision.
The appellant, however, shall be afforded a period of ten
(10) calendar days from the date the order of dismissal was mailed, during
which the appellant may explain in a letter to the administrative adjudicator
the reason for his or her failure to appear. If the administrative adjudicator,
then finds that there was acceptable good cause for the appellant not
appearing, the administrative adjudicator shall vacate the order dismissing the
appeal and reschedule another hearing date.
If the appellant does not submit a letter seeking to show
good cause within a period of ten (10) calendar days, the order of dismissal
shall be filed with the OOA. The OOA shall confirm the dismissal of the appeal
by an agency decision, which shall be served upon the parties and the
interested division of the State Department. Within three (3) working days
after the effective date of the decision, the local office shall implement
necessary actions to provide benefits in the correct amount, terminate
benefits, recover benefits incorrectly paid, and/or other appropriate actions
in accordance with the rules.
If the appellant submits a letter seeking to show good cause
and the administrative adjudicator finds that the stated facts do not
constitute good cause, the administrative adjudicator shall enter an initial
decision confirming the dismissal.
4.802.63
State-Level Hearing
Decisions
A. Decisions of the
administrative adjudicator shall not run counter to Federal law, State
Department rule, or state statute, and shall be based on the hearing record.
The exclusive record for an initial decision by the
administrative adjudicator shall constitute the verbatim transcript or
recording of testimony and exhibits, or an official report containing the
substance of what transpired at the hearing, together with all papers and
requests filed in the proceedings. This record shall be retained in accordance
with normal retention periods. This record shall also be available to the
household or its representative at any reasonable time for copying and
inspection.
B. Following the
conclusion of the state hearing, the administrative adjudicator shall promptly
prepare and issue an initial decision and file it with the OOA.
C. Initial Decision
1. The administrative adjudicator shall
render an initial decision within ten (10) calendar days of the hearing date.
However, if the head of the household or the household's representative
requests a delay in the proceedings, the time limit for action on the decision
may be extended for as many days as the hearing is delayed, up to thirty (30)
calendar days.
2. The initial
decision shall make an initial determination whether the county or the Colorado
Department of Human Services (CDHS) or its agent acted in accordance with,
and/or properly interpreted, the rules of the State Department. The
administrative adjudicator may determine whether statutes were properly
interpreted and applied only when no implementing state rules exist. The
administrative adjudicator has no jurisdiction or authority to determine issues
of constitutionality or legality of departmental rules.
3. The initial decision shall advise the
household that failure to file exceptions to provisions of the initial decision
will waive the right to seek judicial review of a final agency decision
affirming those provisions.
4. The
Office of Appeals shall promptly serve the initial decision upon each party by
first class mail and shall transmit a copy of the decision to the divisions of
the State Department that administer the program(s) pertinent to the
appeal.
5. The initial decision by
the administrative adjudicator shall summarize the facts of the case, specify
the reasons for the initial decision, and identify the supporting evidence and
the pertinent rules.
6. The Office
of Appeals at CDHS, as the designee of the Executive Director, shall review the
initial decision of the administrative adjudicator and shall enter a final
agency decision affirming, modifying, or reversing the initial decision. The
Office of Appeals may issue an order of remand upon receipt of the initial
decision and identification of an issue that warrants a remand before the
initial decision is sent to the parties. Additionally, the Office of Appeals
may issue an order of remand at the time of the substantive review of an
initial decision for final agency decision. An order of remand is not a final
agency decision that is subject to judicial review. The initial decision shall
not be implemented pending review by the Office of Appeals and entry of a final
agency decision. While review of the initial decision is pending before the
Office of Appeals, the record on review, including any transcript or tape of
testimony filed with the Office of Appeals, shall be available for examination
by any party at the Office of Appeals during regular business
hours.
D. Exceptions to
the Initial Decision
1. Any party seeking a
final agency decision that reverses, modifies, or remands the initial decision
of the administrative adjudicator must file a written notice of intent to file
exceptions to the decision with the OOA within five (5) calendar days - plus
three (3) calendar days for mailing - from the date the initial decision is
mailed to the parties. If the party has filed such a notice of intent, the
party will have fifteen (15) calendar days, plus three (3) calendar days for
mailing from the date the initial decision is mailed to the parties to file its
written exceptions with the OOA. Exceptions shall state specific grounds for
reversal, modification, or remand of the initial decision. Exceptions that fail
to state specific grounds for reversal, modification, or remand of the initial
decision shall be considered as only arguments of general
dissatisfaction.
2. If any party
asserts that the administrative adjudicator findings of fact are not supported
by the weight of the evidence, the OOA will request the SNAP fair hearings unit
provide an audio recording of the hearing to the OOA. If the local office
asserts that the administrative adjudicator's findings of fact are not
supported by the weight of the evidence, the local office shall provide a
hearing transcript to the OOA on or before the deadline for the filing of
exceptions. If the local office's yearly budget is not sufficient to pay the
cost of a hearing transcript, the local office may request that the OOA review
an audio recording of the hearing in lieu of a hearing transcript. Such
requests must be mailed or emailed to the OOA at least five (5) calendar days
before the deadline for the filing of exceptions. Additionally, the letter must
indicate the insufficiency of the local office's budget to pay for a hearing
transcript and the letter must be signed by the county department's director.
The OOA shall issue an order regarding the request, and if granted, the OOA
shall request the audio recording from the SNAP fair hearings unit. If the
division(s) of the State Department responsible for administering the
program(s) relevant to the appeal assert(s) that the administrative
adjudicator's findings of fact are not supported by the weight of the evidence,
it shall simultaneously with, or prior to the filing of exceptions, file a
hearing transcript with the OOA on or before the deadline for filing
exceptions.
3. Considering the
federal timeliness requirements for SNAP cases, a party may not request an
extension of time to file exceptions unless a party is able to show sufficient
good cause as to why an extension of time should be granted. The determination
of good cause is within the sole discretion of the OOA. When an extension of
time is granted by the OOA, the extension shall not be for more than five (5)
calendar days after the original exceptions filing deadline. Local offices or
the State Department will need to immediately review initial decisions to
assess any need to request an audio recording from the SNAP fair hearings unit
to receive the audio recording and expedite the transcription of the audio
recording through whatever transcription service it chooses. Any party
requesting transcription services shall be fully responsible for the cost of
such.
4. If the exceptions do not
challenge the findings of fact, but instead assert only that the administrative
adjudicator improperly interpreted or applied state rules or relevant statutes,
no transcript review or audio recording review is required.
5. The OOA shall serve a copy of the
exceptions on each party by first class mail and by electronic mail if the
party has consented to receiving communications by electronic mail. Each party
shall be limited to ten (10) calendar days from the date exceptions are mailed
to the parties in which to file a written response to such exceptions. The OOA
shall not permit oral argument.
6.
The OOA shall not consider evidence that was not part of the record before the
administrative adjudicator. However, the case may be remanded to the
administrative adjudicator for rehearing if a party establishes in its
exceptions that material evidence has been discovered that the party could not
with reasonable diligence have produced at the hearing.
7. The division(s) of the State Department
responsible for administering the program(s) relevant to the appeal may file
exceptions to the initial decision, or respond to exceptions filed by a party,
even though the Division has not previously appeared as a party to the appeal.
The Division's exceptions shall be filed in compliance with the requirements of
section 4.802.63, D, 1 and 2, above. Exceptions filed by a Division that did
not appear as a party at the hearing shall be treated as requesting a review of
the initial decision upon the State Department's own
motion.
E. Final Agency
Decisions
1. The OOA shall enter a final
agency decision resolving the appeal within sixty (60) calendar days after the
request for appeal was received by the SNAP fair hearings unit.
2. In the absence of exceptions filed by any
party or by a division of the State Department, or when exceptions are filed,
the OOA shall review the initial decision and may review the hearing file of
the administrative adjudicator and/or the taped testimony of witnesses before
entering a final agency decision. Review by the OOA shall determine whether the
initial decision properly interprets and applies the rules of the State
Department or relevant statutes and whether the findings of fact and
conclusions of law support the decision. If a party or Division of the State
Department objects to the final agency decision entered upon review by the OOA,
the party or Division may seek reconsideration.
3. The OOA shall mail copies of the final
agency decision to all parties by first class mail.
4. For purposes of requesting judicial
review, the effective date of the final agency decision shall be the third
(3rd) day after the date the decision is mailed to the parties, even if the
third day falls on Saturday, Sunday, or a legal holiday. The parties shall be
advised of this in the final agency decision.
F. Motion for Reconsideration of a Final
Agency Decision
1. A motion for
reconsideration of a final agency decision may be granted by the OOA for the
following reasons:
a. Upon a showing of good
cause for failure to file exceptions to the initial decision within the fifteen
(15) calendar day period; or,
b.
Upon a showing that the final agency decision is based upon a clear or plain
error of fact or law. An error of law means failure by the OOA to follow a
rule, statute, or court decision that controls the outcome of the
appeal.
2. No motion for
reconsideration shall be granted unless it is filed in writing with the OOA
within fifteen (15) calendar days of the date that the final agency decision is
mailed to the parties. The motion shall state specific grounds for
reconsideration of the agency decision.
3. The OOA shall mail a copy of the motion
for reconsideration to each party of record and to the appropriate Division of
the State Department.
G.
Acting on Decisions
1. Initial decisions shall
not be implemented pending review by the OOA and entry of a final agency
decision.
2. The State Department
or local office shall initiate action to comply with the final agency decision
within three (3) working days after the effective date. The acting
department/office shall comply with the decision, even if reconsideration is
requested, unless the effective date of the agency decision is postponed by
order of the OOA or a reviewing court.
3. If it is ruled that the household had its
SNAP benefits wrongfully delayed, denied, or terminated, the local office shall
provide retroactive benefits. If it is decided that benefits were over-issued
before and during the pendency of the determination of final agency action, a
claim for over-issued benefits will be prepared.
4. Final agency decisions which result in an
increase in household benefits shall be reflected in the benefit allotment
within ten (10) days of the receipt of the decision, even if the local office
is obligated to provide a supplementary allotment or otherwise provide the
household with the opportunity to obtain the allotment outside of the normal
cycle. However, the local office may take longer than ten (10) days if it
elects to make the decision effective in the household's normal issuance cycle,
provided that the issuance will occur within sixty (60) days from the
household's request for the hearing.
5. Final agency decisions which result in a
decrease in household benefits shall be reflected in the next scheduled
issuance following receipt of the decision unless the decision is stayed by the
OOA upon a showing of irreparable harm.
