Department of Health and Social Services

Division of Social Services

PROPOSED

PUBLIC NOTICE

Fair Hearing Provisions: DSSM; 5000, 5501, 5502, 5600, 5600.1, 5601, 5602, 5603, 5604, 5605, 5606 and 5607

In compliance with the State's Administrative Procedures Act (APA - Title 29, Chapter 101 of the Delaware Code) and under the authority of Title 31 of the Delaware Code, Chapter 5, Section 512, Delaware Health and Social Services (DHSS) / Division of Social Services is proposing to amend policies in the Division of Social Services Manual (DSSM) regarding various Fair Hearing provisions.

Any person who wishes to make written suggestions, compilations of data, testimony, briefs or other written materials concerning the proposed new regulations must submit same to Sharon L. Summers, Policy, Program & Development Unit, Division of Social Services, 1901 North DuPont Highway, P.O. Box 906, New Castle, Delaware 19720-0906 or by fax to (302) 255-4425 by January 31, 2012.

The action concerning the determination of whether to adopt the proposed regulation will be based upon the results of Department and Division staff analysis and the consideration of the comments and written materials filed by other interested persons.

Summary of Proposed Changes

The proposal described below amends policies in the Division of Social Services Manual (DSSM) regarding various Fair Hearing provisions, including Definitions, Public Access to Hearing Records, Admissible Evidence, Official Notice, Protocol, and Request for Continuance.

Statutory Authority

Summary of Proposed Changes

The proposed changes reformat and clarify text for ease of readability. Additional changes include updating DSSM 5000; moving DSSM 5601 to Definitions; and, incorporating DSSM 5602, 5603, and 5607 into DSSM 5600.1. Also, section titles were renamed to more accurately reflect the section contents.

The proposed changes affect the following policy sections in the Division of Social Services Manual (DSSM):

DSSM 5000, Definitions

DSSM 5501, Corrective Payments

DSSM 5502, Public Access to Hearing Decisions

DSSM 5600, Admission of Hearsay Evidence

DSSM 5600.1, Admissible Evidence

DSSM 5601, Rule of Legal Residuum

DSSM 5602, Exclusionary Rules of Evidence

DSSM 5603, Official Notice

DSSM 5604, Protocol

DSSM 5605, Requests for Continuance

DSSM 5606, Recusation

DSSM 5607, Demeanor Evidence.

DSS PROPOSED REGULATION #11-53

REVISIONS:

Advance Notice Period or Timely Notice Period - Is the ten (10) day period between the date a notice is mailed to the date a proposed action is to take effect.

Appellant - Is a recipient who has requested a hearing.

Benefits - Are any kind of assistance, payments or benefits made by TANF, GA, Medicaid, Child Care or Food Stamps.

Claimant - Is an applicant who has requested a hearing.

DHSS - Is the Department of Health and Social Services, including

1) the Division of Social Services (“DSS”), in connection with economic, medical, vocational or child care subsidy assistance;

2) the Division of Medicaid and Medical Assistance (“DMMA”) or a managed care organization (“MCO”) under contract with DHSS to manage an operation of the Medicaid Program, in connection with medical assistance;

3) the Division of State Service Centers (“DSSC”) in connection with the Emergency Assistance Program;

4) the Division of Developmental Disabilities Services (DDDS) in connection with Medicaid Program services;

5) the Division of Public Health in connection with Medicaid Program services;

6) the Division of Services for the Aging and Adults with Physical Disabilities (DSAAPD) in connection with Medicaid Program services.

DSS - Is the Division of Social Services (or "the Division.")

Fair Hearing - Is an administrative hearing held in accordance with the principles of due process which include:

1) Timely and adequate notice;

2) The right to confront and cross- examine adverse witnesses;

3) The opportunity to be heard orally;

4) The right to an impartial decision maker;

5) The opportunity to obtain counsel.

Hearing Decision - Is the decision in a case appealed to the State hearing officer. The decision includes the substance of what transpired at the hearing and a summary of the case facts, supporting evidence, and pertinent State or federal regulations and gives the reason for the decision. In Food Stamp disqualification cases, the hearing decision must also respond to reasoned arguments by the appellant.

EXAMPLE: At a Food Stamp Program Intentional Program Violation Hearing involving a failure to report a change promptly, an appellant may argue that a failure to report does not constitute "clear and convincing evidence" of intent to defraud. The hearing officer's decision must respond to this argument.

Hearing Officer - Is the individual responsible for conducting the hearing and issuing a final decision on issues of fact and questions of law.

Hearing Record - Is a verbatim transcript of all evidence and other material introduced at the hearing, the hearing decision, and all other correspondence and other documents which are admitted as evidence or otherwise included for the hearing record by the hearing officer.

Hearing Summary - Is a document prepared by an agency stating the reason(s) the action under appeal was taken and the information upon which the reasons are based. The summary may include documents to be used to decide the issue in question. Its purpose is to provide an appellant with information to prepare his case for the hearing.

MCO - Means a Managed Care Organization offering or providing medical services to recipients of medical assistance from DHSS and individual medical service providers of an MCO panel.

Party - A party to a hearing is a person or an administrative agency or other entity who has taken part in or is concerned with an action under appeal. A party may be composed of one or more individuals.

Request for a Fair Hearing - Any clear expression (oral or written) by the appellant or his authorized agent that the individual wants to appeal a decision to a higher authority. Such request may be oral in the case of actions taken under the Food Stamp Program.

State Presenter - Is the agency employee advocating the State's case in a hearing.

“Abandonment”; When the claimant fails without good cause, to appear (by himself or by authorized representative) at his or her scheduled hearing.

“Adequate Notice”; A written notice that includes:

“Advance Notice Period”; The 10 day period between the date a notice is mailed to the date a proposed action is to take effect. (Also called Timely Notice Period.)

“Appellant”; Anyone who requests a hearing. (Also called Claimant.)

“Benefits”; Any kind of assistance, payments or benefits made by TANF, GA, Medicaid, Child Care, Refugee, Emergency Assistance or Food Supplement programs.

“Claimant”; Anyone who requests a hearing. (Also called Appellant.)

“DSS”; The Division of Social Services (or "the Division.")

“DHSS”; The Department of Health and Social Services, including:

“Fair Hearing”; An administrative hearing held in accordance with the principles of due process which include:

“Fair Hearing Summary”; A document prepared by the agency stating the factual and legal reason(s) for the action under appeal. The purpose of the hearing summary is to state the position of the agency/entity that initiated the action in order to provide the appellant with the necessary information to prepare his or her case.

“Good Cause”; May include, but is not limited to the following:

“Group Hearing”; A series of individual requests for a hearing consolidated into a single group hearing. A group hearing is appropriate when the sole issue involved is one of State or federal law, regulation, or policy. The policies governing hearings will be followed In all group hearings. The individual appellant in a group hearing is permitted to present his or her case or be represented by an authorized representative.

“Hearing Decision”; The decision in a case appealed to the State hearing officer. The decision includes:

“Hearing Officer”; The individual responsible for conducting the hearing and issuing a final decision on issues of fact and questions of law.

“Hearing Record”; A verbatim transcript of all evidence and other material introduced at the hearing, the hearing decision, and all other correspondence and documents which are admitted as evidence or otherwise included for the hearing record by the hearing officer.

“Hearing Summary”; A document prepared by an agency stating the reason(s) the action under appeal was taken and the information upon which the reasons are based. The summary may include documents to be used to decide the issue in question. Its purpose is to provide an appellant with information to prepare his or her case for the hearing.

“Hearsay Evidence”; Testimony about a statement made by a third party that is offered as fact without personal knowledge.

“Individual Hearing”; A hearing in which an individual client disagrees with the action taken by the Department on the facts of his or her case.

“MCO”; 1. A Managed Care Organization offering or providing medical services to recipients of medical assistance from the DHSS.

“Party”; A party to a hearing is a person or an administrative agency or other entity who has taken part in or is concerned with an action under appeal. A party may be composed of one or more individuals.

“Privilege”; Appellants may decline to present testimony or evidence at a fair hearing under claim of privilege. Privilege may include the privilege against self- incrimination or communication to an attorney, a religious advisor, a physician, etc.

“Request for a Fair Hearing”; Any clear expression (oral or written) by the appellant or his authorized agent that the individual wants to appeal a decision to a higher authority. Such request may be oral in the case of actions taken under the Food Supplement Program.

“Relevance”; Refers to evidence. Evidence is relevant if an average person believes that the evidence makes a significant fact more probable.

“Rule of Residuum”; Findings of fact must be supported by at least some evidence which is admissible in a court of law.

“State Presenter”; The agency employee advocating the State's case in a hearing.

“Timely Notice Period“; The 10 day period between the date a notice is mailed to the date a proposed action is to take effect. (Also called Advance Notice Period.)

(Break in Continuity of Sections)

When the hearing decision is favorable to the appellant, or when the agency decides in favor of the appellant prior to the hearing, the agency will promptly make corrective payments (retroactive to the date incorrect action was taken). For the purpose of this section, "prompt" means action must be taken to initiate the corrective payments or other remedy within five (5) business days of the date of the hearing decision. Benefits will be restored to food stamp households which are leaving a project area before their departure, whenever possible. If benefits are not restored prior to the household's departure, the agency shall forward an authorization for benefits to the household or new project area if this information is known.

When the hearing decision upholds the agency's action, a claim against the household for any overissuance will be prepared.

7 CFR 273.15(s), 42 CFR 431.246, 45 CFR 205.10(a)(16)

This policy applies any time a hearing decision requires an adjustment in benefits. It also applies when an error that favors the appellant/claimant is discovered by the Division of Social Services (DSS) or the Division of Medicaid & Medical Assistance (DMMA).

1. The State Agency Initiates Corrective Actions

Staff will take corrective action (retroactive to the date an incorrect action was taken) when:

A. A hearing decision is favorable to the appellant

B. The agency decides in favor of the appellant prior to the hearing

Staff will take action to initiate the corrective payments or other remedy within 5 business days of the date of the hearing decision.

DSS or DMMA staff will restore benefits to food benefit households that are leaving the State before the household’s departure, whenever possible.

Decisions are accessible to the public subject to provisions for safeguarding public assistance information. Under 31 Delaware Code 1101, "no person may reveal information concerning applicants for or recipients of public assistance except for the purposes directly connected with the administration of the program."

7 CFR 272.1(c), 7 CFR 273.15(q)(5), 42 CFR 431.244(g), 45 CFR 205.10(19), 45 CFR 205.50, 31 Del.C. §1101

This policy applies to all hearing decisions made by the Division of Social Services (DSS) or the Division of Medicaid & Medical Assistance (DMMA).

1. Hearing Decisions are Available to The Public

Hearing decisions are available to the public on the Division of Social Services and Division of Medicaid & Medical Assistance websites.

DSS: (http://www.dhss.delaware.gov/dhss/dss/redactedfairhearings.html)

DMMA: (http://www.dhss.delaware.gov/dhss/dmma/fairhearings.html).

2. DSS and DMMA Take Steps to Keep Identities Confidential

DSS and DMMA remove information that might identify the appellant/claimant before the decision is made available.

No information concerning applicants or recipients of public assistance is revealed except for the purposes directly connected with the administration of the program.

(Break in Continuity of Sections)

1) Hearsay evidence is evidence of a statement made outside the hearing which is introduced at the hearing as proof of the truth of its content.

2) Hearsay evidence is not admissible over objection unless it meets one of the exceptions to the hearsay rule (evidence which, although it falls within definition of hearsay, is nevertheless admissible because of special necessity) listed in the Delaware Uniform Rules of Evidence. Admissible hearsay evidence includes:

a) Any statements where the claimant has had an opportunity to cross examine the witness at a prior proceeding or statements of agency staff who could be available as witnesses upon a claimant's request; and.

b) Evidence which falls within recognized hearing exceptions where cross- examination of the witness would not be meaningful, such as those enumerated in Federal Rule of Evidence 803. (See Ortiz v. Eichler, 794 F2d 889,896 (3rd Cir. 1986).

c) Official records of the Department of Health and Social Services and other official records when authenticated by a custodian of the record.

d) Evidence recognized by official notice as an exception to the hearsay rule (see 5603).

Recognized exceptions to the hearsay rule include statements for purposes of medical diagnosis, records of regularly conducted activity (such as E&T logs), records of vital statistics, records of religious organizations, records of or statements in documents affecting an interest in property. For other exceptions, refer to 803 Delaware Uniform Rules of Evidence.

Federal Rule of Evidence 803, Delaware Uniform Rules of Evidence

This policy applies to applicants and recipients for any public assistance program administered by the Division of Social Services or the Division of Medicaid & Medical Assistance.

1. The Hearing Officer Decides if Hearsay Evidence is Admissible

Admissible hearsay evidence includes:

A. Statements where the claimant has had an opportunity to cross examine the witness at a prior proceeding

B. Statements of agency staff who could be available as witnesses upon a claimant's request

C. Evidence which falls within recognized hearing exceptions where cross-examination of the witness would not be meaningful

D. Official records of the Department of Health and Social Services and other official records when authenticated by a custodian of the record

E. Evidence recognized by official notice as an exception to the hearsay rule (see DSSM 5603)

2. Hearsay Evidence is Not Admissible if There is an Objection

If a party to the hearing objects to the use of hearsay evidence, the evidence will not be admitted.

5600.1 Admissible Evidence ADMITTING EVIDENCE

Evidence admitted at the hearing shall be limited to evidence having a bearing on the issue(s) on appeal. Such issues include those offered by the appellant at the time of his/her appeal and those offered by the State or other party as a basis for the action or inaction under appeal. No other evidence or issues shall be considered.

45 CFR 205.10(14)

This policy applies to applicants and recipients for any public assistance program administered by the Division of Social Services or the Division of Medicaid & Medical Assistance.

1. Hearing Officer Determines if Evidence is Admissible

Evidence must meet the following minimum criteria to be admissible.

A. Relevance - In order for evidence to be admissible in a fair hearing it must be relevant. Evidence is relevant if an average person believes that the evidence makes a significant fact more probable.

B. Reliability - In order for evidence to be admissible in a fair hearing it must be reliable.

C. Competence - In addition to relevance and reliability, evidence admitted at a hearing must be competent.

D. Privilege - Appellants may decline to present testimony or evidence at a fair hearing under claim of privilege.

The hearing officer may make a negative assumption when a party declines to give testimony under a claim of privilege.

Privilege may include the privilege against self-incrimination or communication to an attorney, a religious advisor, or doctor.

1. Claimants or Witnesses May Waive Privilege

Privileges are waived by a claimant or witness if he or she testifies to some part of the privileged matter.

Privileges are waived by a claimant if the information is relevant to the defense of the action or inaction under appeal.

EXAMPLE: A person who makes his or her medical condition an issue may not use Doctor/ Patient privileges to exclude any information relating to his or her condition.

2. Hearing Officer Limits Admissible Evidence

Only evidence relating to the issue under appeal is admissible at the hearing. Issues under appeal include those offered by:

A. The appellant at the time of his or her appeal

B. The State as a basis for the action or inaction under appeal

C. Another party as a basis for the action or inaction under appeal

3. Hearing Officer May Admit Other Evidence

Information concerning matters of common knowledge and generally accepted as true may be relied on in a fair hearing whether or not it is introduced by evidence or testimony.

The behavior of a party to a hearing may be taken by a hearing officer into evidence only when the behavior has been noted in the hearing record.

Findings of fact must be supported by at least some evidence which is admissible in a court of law.

1) Relevance - In order for evidence to be admissible in a fair hearing it must be relevant. Evidence is relevant if a reasonable person could feel that, assuming the evidence is true, it renders a significant fact more probable than it appeared before the introduction of the evidence.

2) Reliability - In order for evidence to be admissible in a fair hearing it must be reliable.

3) Competence - In addition to relevance and reliability, evidence admitted at a hearing must be competent.

4) Privilege - Appellants may decline to present testimony or evidence at a fair hearing under claim of privilege.

Privilege may include the privilege against self- incrimination or communication to an attorney, a religious advisor, or physician (and may not be disclosed without the consent of the person who sought the professional assistance unless it has been waived or the person attempting to claim it has put the subject of the privilege at issue in the fair hearing).

Privileges are waived by a claimant or witness if he/she testifies to some part of the privileged matter or, in the case of a claimant, the matter is relevant to a claim in defense that is the subject of the hearing.

EXAMPLE: A person who makes his/her medical condition an issue may not use Doctor/ Patient privileges to exclude any information relating to his/her condition), or

The hearing officer may take a negative inference when a party declines to give testimony under a claim of privilege.

Information concerning matters of common knowledge and generally accepted as true may be relied on in a fair hearing whether or not it is introduced by evidence or testimony.

1) If a hearing is requested, a party to the hearing may not discuss the merits of the case with the hearing officer before the hearing.

2) Agency employees may not discuss the merits of the case with the hearing officer after the hearing is adjourned. However, after the hearing decision is made final, the parties may discuss the results of the hearing with the hearing officer. An exception to this is if the hearing officer has remanded or sent the case back with instructions for further action and the agency worker expects to receive another request for a fair hearing.

This policy applies to all parties involved with a hearing for any public assistance program administered by the Division of Social Services or the Division of Medicaid & Medical Assistance.

1. Discussions About the Case Are Prohibited

A. Before the Hearing:

A party to the hearing may not discuss the merits of the case with the hearing officer.

B. After the Hearing

Agency employees may not discuss the merits of the case with the hearing officer after the hearing is adjourned.

However, after the hearing decision is made final, the parties may discuss the results of the hearing with the hearing officer.

Either party to a hearing may request that the hearing officer continue the hearing on a different date.

A witness or party in interest to the hearing does not have standing to request that the date of a hearing be continued.

A request for a continuance must be made at least twenty- four (24) hours in advance of the hearing so that the other party may be notified.

The request for a continuance must specify the reason that a continuance is needed.

Examples of requests for which a continuance should be granted, include, but are not limited to:

1) Illness of a party or witness;

2) Extreme inclement weather;

3) Request for additional time to prepare for the hearing.

The hearing officer will respond to the request not later than ten (10) days after the request is received.

No continuance will be granted to the State or its agent if the continuance would result in the State exceeding the time limits specified in §5305 and §5309 or any statutory time limit.

7 CFR 273.15(c)(4)

This policy applies to every appellant, appellant’s authorized agent, and agency staff involved in the hearing. It applies to any public assistance program administered by the Division of Social Services or the Division of Medicaid & Medical Assistance.

1. Either Party To A Hearing May Request A Continuance

Either party to a hearing may request that the hearing officer continue the hearing on a different date.

2. Requests For A Continuance Meet Specific Requirements

A request for a continuance must:

A. Be made at least 24 hours in advance of the hearing so that the other party may be notified

B. Specify the reason that a continuance is needed

Examples of requests for which a continuance should be granted, include, but are not limited to:

1. Illness of a party or witness

2. Extreme inclement weather

3. Request for additional time to prepare for the hearing

3. Hearing Officer Responds to Requests

The hearing officer will respond to the request not later than 10 days after the request is received.

No continuance will be granted to the State or its agent if the continuance would result in the State exceeding the time limits specified in DSSM 5305 and DSSM 5309 or any statutory time limit.

Either party at a hearing may request that a hearing officer disqualify himself from hearing the issue for reasons of interest or prejudice. A hearing officer may disqualify himself sua sponte (on his own motion). If disqualified, a hearing officer will immediately notify the Director of the Division of Social Services who will promptly appoint a new hearing officer.

7 CFR 273.15(m), 42 CFR 431.240(a)(3), 45 CFR 205.10(a)(9)

This policy applies to every hearing officer, appellant, appellant’s authorized agent, and agency staff involved in the hearing. It applies to any public assistance program administered by the Division of Social Services or the Division of Medicaid & Medical Assistance.

1. Hearing Officer Is Impartial

The hearing officer must be impartial with no personal stake or involvement in the case. The hearing officer is prohibited from having any involvement in the initial determination of the action in question.

2. Hearing Officer May Disqualify Himself

3. Either Party May Ask to Disqualify a Hearing Officer

The appellant, the appellant’s authorized agent, or the agency employee may ask the hearing office to disqualify himself or herself from the hearing. This could happen if they believe the hearing officer has an interest in or prejudice against an issue of the hearing.

4. Hearing Officer Gives Notice of Disqualification

If a hearing officer is disqualified, the officer will immediately notify the Director of the Division of Social Services. The Director will promptly appoint a new hearing officer.

The behavior of a party to a hearing may be taken by a hearing officer into evidence only when the behavior has been noted in the hearing record.