4200, Hearing Procedure

Revision 10-1; Effective January 15, 2010

4210 Conduct of Hearing — 1 TAC §357.528

Revision 15-2; Effective November 20, 2015

The hearings officer conducts the administrative disqualification hearing as an informal proceeding, not as a formal court hearing. The participants are placed under oath, but the formal rules of evidence are not followed.

At the hearing, the hearings officer must advise the respondent or his representative that he may refuse to testify or answer questions during the hearing.

The hearing is recorded.

4211 Presentation of HHSC's Case — 1 TAC §357.540

Revision 15-2; Effective November 20, 2015

OIG is responsible for presenting HHSC'S case in the administrative disqualification hearing.

4212 Respondent's Rights During Hearing — 1 TAC §357.530

Revision 15-2; Effective November 20, 2015

The hearings officer must give the respondent or his representative an adequate chance to do the following:

• Examine all relevant documents and records at a reasonable time before and during the hearing. The case record is available to the respondent or his representative, including the application form and the verification documents used to find out the household's ineligibility or eligibility and allotment amount. All open records requests should be sent to the hearings administrator. If the respondent or his representative asks for a copy of the case record, HHSC provides a free copy of the portions that are relevant to the hearing. HHSC protects confidential information from release. Confidential information may include the names of people who have disclosed information about the household without its knowledge, or information that shows the nature or status of pending criminal prosecutions. Confidential information and other documents or records that the household may not otherwise have a chance to contest or challenge are not introduced at the hearing. They do not affect the hearings officer's decision.
• Present the case or have it presented by a legal counsel or another person.
• Present witnesses.
• Present or refuse to present arguments without undue interference.
• Question or refute any testimony or evidence, including a chance to confront and cross-examine adverse witnesses.
• Submit evidence to show all pertinent facts and circumstances in the case.
• Refuse to answer any question whether it is asked by the hearings officer or the agency representative.

4213 Attendance at Hearing — 1 TAC §357.529

Revision 15-2; Effective November 20, 2015

A representative from OIG must attend the hearing to explain and defend HHSC's case.

The respondent may attend the hearing, offer evidence, present testimony, ask questions and answer questions; however, he is not required to do so. If the respondent does not attend the hearing or chooses not to testify or answer questions, the hearings officer will consider only HHSC's evidence and testimony in making a decision.

The hearing is not open to the public; however, at the respondent's request, friends and relatives may attend. If space is limited, the hearings officer may limit the number of people attending the hearing.

4213.1 Failure of OIG to Appear

Revision 15-2; Effective November 20, 2015

If the OIG representative does not appear to explain or defend HHSC’s case, the hearings officer opens the record and states that the agency representative did not appear. The hearings officer will take no testimony. The hearings officer closes the record and issues a decision finding the respondent did not commit an intentional program violation, regardless of whether the respondent appears for the hearing.

4213.2 Failure of Respondent to Appear – Notice Requirement Met — 1 TAC §357.532

Revision 15-2; Effective November 20, 2015

If advance notice requirements (as outlined in Section 4135, Advance Notice of Hearing — 1 TAC §357.526) are met and the respondent or his representative fails to attend a hearing without good cause, the hearings officer holds the hearing without the respondent. The respondent has 10 calendar days from the date of the hearing to show good cause for failing to appear.

If the hearings officer finds the respondent committed an intentional program violation, but later finds that the respondent or his representative did not receive notice of the hearing or had good cause for not appearing, a new hearing is held. The previous decision is no longer valid, and a new decision is issued. The respondent has one year from the date of the hearing decision to show good cause for failure to appear because he did not receive notice of the hearing.

4213.3 Failure of Respondent to Appear – Notice Requirement Not Met — 1 TAC §357.532(c)

Revision 15-2; Effective November 20, 2015

If advance notice requirements are not met, the hearings officer reschedules the hearing to ensure advance notice requirements are met.

4220 Time Frames, Postponements, Recesses and Delays — 1 TAC §357.533 and §357.534

Revision 15-2; Effective November 20, 2015

The hearings officer must hold the hearing and issue a written decision no later than 90 calendar days from the date that hearings staff mail Form H4851-F, Notice of Administrative Disqualification Hearing, to the respondent. 

If the initial notice is returned due to a bad address and hearings staff re-send it to a more current address, the hearings officer must issue the written decision no later than 90 calendar days from the date that hearings staff mail the second Form H4851-F. Advance notice is still required if the hearings officer reschedules a hearing for this reason. When entering the new notice in TIERS, use the delay reason "Bad Address/Unable to Locate."

Exceptions: Issuing some decisions may be delayed beyond the time periods described above. In the instances below, hearings staff may enter a delay in TIERS, and the due date will be extended by the number of delay days entered. Hearings staff should enter a delay for the number of days between the first and second hearing date or for the number of days needed to get additional information. The maximum allowable delay is 30 days.

The respondent or his representative may ask for one postponement of up to 30 calendar days. Additional postponements may be requested and approved if the respondent has good cause for asking for the postponement. Advance notice is not required for hearings rescheduled at the respondent’s request. The hearings officer must allow a minimum notice of 14 days for these hearings. When rescheduling the hearing in TIERS, enter a delay using "Rescheduled at Client's Request."  

Hearings may also be postponed at the request of OIG for business reasons if OIG makes the request no later than five calendar days after the date on Form H4851-F. Business reasons include conflicts in scheduling due to training, meetings or multiple hearings scheduled at the same time. Business reasons do not include conflicts in scheduling due to leave or flex time. If the hearings officer postpones a hearing at the request of OIG, the hearings officer must give advance notice of the postponed hearing to the respondent. When entering the new notice in TIERS, use the delay reason "Request by Agency."

Hearings may be postponed due to factors beyond the control of the hearings officer, such as inclement weather or power outages. If factors beyond the control of the hearings officer cause a postponement, the hearings officer must give advance notice of the postponed hearing to the respondent. When rescheduling the hearing in TIERS, enter a delay using "Delay Beyond Agency Control."

If the respondent asks for additional information or wants additional information considered, the hearings officer may recess the hearing to allow time to receive this information. The respondent may question or refute any additional testimony or evidence after a recess.

The hearings officer may order a recess to ask for and receive additional testimony or evidence. The hearings officer tells the respondent or his representative the reason for the recess and the nature of the requested information. The respondent may question or refute any additional testimony or evidence after a recess.

The hearings officer reconvenes the hearing after the witness, document or other evidence is available. Once the hearings officer reconvenes the hearing, it is held as any other hearing.

Advance notice of 30 days is not required for hearings held open for additional evidence. The hearings officer should allow notice of 14 days for these hearings unless all parties agree in advance upon a date and time to reconvene. When scheduling the reconvened hearing in TIERS, enter a delay using "Record Held Open for Additional Evidence."

Use the chart below to determine due dates, notice requirements, delay reasons and maximum delays allowed.

4230 Consideration of the Case and Findings by the Hearings Officer — 1 TAC §357.531 and §357.535

Revision 15-2; Effective November 20, 2015

The hearings officer must base his decision on clear and convincing evidence that the respondent committed an intentional program violation, as defined in Section 4111, Definition of Intentional Program Violation.

Clear and convincing evidence means the trier of fact must be persuaded by the evidence that it is highly probable the claim is true. The clear and convincing evidence standard is greater than the preponderance of the evidence standard but less than beyond a reasonable doubt.

The hearings officer must substantiate his decision by identifying supporting evidence and applicable regulations. He must also respond to reasonable arguments made by the respondent or the respondent's representative.

The hearings officer makes a decision about the allegation that the respondent committed an intentional program violation. The hearings officer issues a written decision within the time frames specified in Section 4220, Time Frames, Postponements, Recesses and Delays — 1 TAC §357.533 and §357.534. The decision of the hearings officer must comply with HHSC policy and federal law and regulations, and it must be based exclusively on the hearing record.

The hearings officer may not find that the respondent committed an intentional program violation unless there is clear and convincing evidence in the record to support a decision that the respondent knowingly, willfully and with deceitful intent committed an act described in Section 4111, Definition of Intentional Program Violation.

4240 The Hearing Record and Decision — 1 TAC §357.536

Revision 15-2; Effective November 20, 2015

Respondents or their representatives may inspect the hearing record during work hours. They may also ask for a copy of the hearing record.

The hearings officer sends written notice of the decision to the respondent or to the appropriate HHSC staff per Section 4243, Notice of Hearing Decision and the Effect on Remaining Household Members — 1 TAC §357.538. The hearings officer's decision:

• specifies the reasons for the decision,
• identifies the supporting evidence and regulations, and
• responds to reasonable arguments of the respondent or his representative.

The hearing record includes all exhibits admitted to the hearing record, all correspondence concerning the hearing and the audio recording of the hearing.

HHSC keeps hearing records for both SNAP and TANF administrative disqualification hearings for audit and review purposes per the records retention schedule, which is currently six years from the decision date.

4241 Effect of an Administrative Determination of Intentional Program Violation — 1 TAC §357.537

Revision 15-2; Effective November 20, 2015

• If a hearings officer finds a respondent committed an intentional program violation, the respondent is disqualified from SNAP and/or TANF for the following periods:
  • TANF. If the intentional program violation occurred on or after Sept. 1, 2003, the person is disqualified:
    • 12 months for the first intentional program violation determination, and
    • permanently for the second intentional program violation determination.
  • SNAP. The person is disqualified:
    • for a period of one year upon the first occasion of any such determination;
    • for a period of two years upon:
      • the second occasion of any such determination; or
      • the first occasion of a finding by a federal, state or local court of the trading of a controlled substance (as defined in Title 21, United States Code [USC], §802) for coupons;
    • permanently upon:
      • the third occasion of any such determination;
      • the second occasion of a finding by a federal, state or local court of the trading of a controlled substance (as defined in Title 21, USC, §802) for coupons;
      • the first occasion of a finding by a federal, state or local court of the trading of firearms, ammunition or explosives for coupons; or
      • conviction of the offense of knowingly receiving, transferring, acquiring, altering or possessing coupons, authorization cards or access devices in any manner contrary to the Food Stamp Act of 1977 involving an aggregate amount of $500 or more; or
    • for a period of 10 years if a person is convicted in a state or federal court or is found by a state administrative hearing to have made a fraudulent statement or representation with respect to the identification or place of residence of the individual in order to receive multiple benefits simultaneously under SNAP.
• The disqualification period does not depend on the amount of benefits involved. The disqualification period set at the time of the hearing is applicable regardless of current eligibility.
• If one hearing is held for several offenses, HHSC may impose only one disqualification period.
• If the hearings officer imposes a one-year disqualification for an initial violation, no further disqualifications may be imposed for violations occurring before the hearing decision that are later discovered. Although the hearings officer makes a decision about the intentional program violation, the respondent may appeal the amount of overpayment. The administrative disqualification hearing must be held and a decision issued before the fair hearing on the overpayment, unless the hearings officer holds both the administrative disqualification hearing and the fair hearing at the same time.

4241.1 Procedures for SNAP and TANF Administrative and Judicial Reviews

Revision 15-2; Effective November 20, 2015

If HHSC disagrees with the hearings officer’s decision, HHSC may ask for a review via the exception process.

If the respondent disagrees with the hearings officer’s decision, the respondent may ask for an administrative review.

An administrative review is when HHSC Regional Legal Services reviews a hearings officer’s decision on an administrative disqualification hearing. The assigned attorney reviews the hearing record and issues a new decision.

An administrative review must be requested within 30 calendar days of the date on the decision. The request for a review is sent to the hearings administrator at:

Hearings Administrator
Mail Code W-613
P.O. Box 149030
Austin, TX 78714

Exception: The 30 days does not start until the hearings officer issues a new decision if the respondent or respondent’s representative is working with the hearings officer to reopen or reschedule the hearing.

Upon receipt of an administrative or judicial review request or an exception request, follow procedures in Section 2100, Administrative Review — 1 TAC §§357.701-703, through Section 2450, Hearing Manager’s Responsibility in the Exception Process. The administrative disqualification procedures for administrative and judicial reviews and for exceptions are the same as those used for fair hearings.

4242 Effect of Nondetermination of Intentional Program Violation — 1 TAC §357.541

Revision 15-2; Effective November 20, 2015

If a hearings officer finds that the respondent did not commit an intentional program violation, the respondent will not be disqualified.

Although the hearings officer makes a decision about the intentional program violation, the respondent may appeal the amount of overpayment. The administrative disqualification hearing must be held and a decision issued before the fair hearing on the overpayment, unless the hearings officer holds both the administrative disqualification hearing and the fair hearing at the same time.

4243 Notice of Hearing Decision and the Effect on Remaining Household Members — 1 TAC §357.538

Revision 15-2; Effective November 20, 2015

The hearings officer informs the respondent of the decision in writing.

Within 15 calendar days of a hearings officer's written decision to disqualify the respondent, the HHSC Central Disqualification Unit informs the respondent of the effect of the hearings officer's decision. In dismissed cases or cases in which the hearings officer finds that the respondent did not commit an intentional program violation, the hearing decision is the final notice sent to the respondent. Except for dismissed, withdrawn and waived cases, the hearings officer informs the respondent of the decision on Form H4857, Notice of Decision, Administrative Disqualification Hearing. The hearings officer sends one copy each to the investigator and the respondent's representative. In addition, the hearings officer sends all “did commit” and “did not commit” ADH decisions (Form H4857 and order) electronically to the Central Disqualification Unit.

4244 Court Actions in Relation to Administrative Disqualification — 1 TAC §357.539

Revision 15-2; Effective November 20, 2015

A hearings officer does not have jurisdiction to hear or make a decision on a case that a court has already heard.

TANF and SNAP federal regulations allow a court of appropriate jurisdiction to order that a person be disqualified from participating in the program for the time periods described in 1 TAC §357.537, Effect of an Administrative Determination of Intentional Program Violation.

The state, a political subdivision of the state, or the United States may serve as prosecutor or plaintiff.

If the court fails to impose a disqualification period on a respondent who committed an intentional program violation, HHSC imposes one of the penalties described in 1 TAC §357.537. HHSC imposes the appropriate penalty unless the court order prohibits the penalty.

4245 Imposing a Disqualification

Revision 15-2; Effective November 20, 2015

HHSC must enforce administrative SNAP and TANF program disqualifications the first month after the month the household receives Form H4857, Notice of Decision, Administrative Disqualification Hearing. HHSC must enforce court-ordered SNAP disqualifications within 45 days of the date of the court decision.

If HHSC imposes the SNAP disqualification period after these limits, it is reduced by one month for each month or part of a month that the imposition is delinquent. Thus, a one-year disqualification period that was imposed two months late is reduced to 10 months. (However, the remaining two months are treated as overpayments due to HHSC error.)

When a SNAP and TANF respondent waives the hearing, HHSC must enforce the disqualification no later than the second month after the date the notice of disqualification was sent to the respondent.

4246 Consolidation of Administrative Disqualification Hearings and Fair Hearings — 1 TAC §357.542

Revision 15-2; Effective November 20, 2015

The hearings officer may combine a fair hearing and an administrative disqualification hearing to settle the amount of the claim at the same time as deciding whether or not an intentional program violation has occurred. To do this, the following conditions must exist:

• The factual issues arise out of the same or related circumstances, and the respondent receives advance notice that the hearings will be combined.
• Disqualification hearing procedures are adhered to.

At the respondent's request, the hearings officer must allow the respondent to waive the 30-day advance notice period that is required when a disqualification hearing and fair hearing are combined. If the respondent does not receive advance notice that the hearings will be combined, but decides to waive the advance notice requirement, the hearings officer obtains the respondent's signature on a waiver of notice. The hearings officer then proceeds with a fair hearing on the claim.

When a disqualification hearing and fair hearing are combined and the respondent does not waive the advance notice requirement, the hearings officer follows the time frames for holding disqualification hearings.

When the hearings are combined to settle the amount of the claim while deciding whether or not an intentional program violation has occurred, the respondent loses the right to a subsequent fair hearing on the amount of the claim.

When a respondent chooses to waive the advance notice requirement, the hearings officer documents in the decision (under procedural history) that the respondent waived the Notice of Administrative Disqualification Hearing.