Revision 14-5; Effective December 10, 2014

 

The hearings officer makes the final administrative decision in fair hearings for certain Texas Health and Human System (HHS) agencies and their designees.

If the appellant disagrees with the hearings officer’s decision, an administrative review, judicial review or procedural review may be requested.

If the agency disagrees with the hearings officer’s decision, a review may be requested via the exception process.

 

2100 Administrative Review – 1 TAC §357.701-703

Revision 11-4; Effective June 1, 2011

 

An administrative review is the review of a hearings officer’s decision on a Supplemental Nutrition Assistance Program (SNAP), Temporary Assistance for Needy Families (TANF) or Medicaid appeal or an administrative disqualification hearing by HHSC Regional Legal Services. The assigned attorney reviews the testimony and evidence available to the hearings officer when the decision was issued and issues a new decision. An appellant or appellant’s representative may request an administrative review when he does not agree with the hearings officer’s decision.

 

2110 Appellant’s Responsibility

Revision 11-4; Effective June 1, 2011

 

When an appellant or appellant’s representative does not agree with a hearings officer’s decision, he may request a review of the decision within 30 days of the date on the decision. The request must be in writing and postmarked no later than the 30th day. A request for administrative review will be considered timely if filed after 30 days, when the appellant demonstrates good cause for the filing delay.

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 begin until a new decision is issued if the appellant or appellant’s representative is working with the hearings officer to reopen or reschedule the hearing.

 

2120 Receipt of the Administrative Review Request

Revision 14-2; Effective August 6, 2014

 

Appellants submit administrative review requests by fax, mail and email.

Upon receipt of the request, the hearings administrator’s assistant:

  • enters the request into the appropriate database,
  • creates a tracking sheet with pertinent information,
  • scans the request, and
  • emails it to the appropriate hearings manager.

The hearings officer reviews the request to determine whether to reopen the appeal. If the original appeal was dismissed because the appellant failed to appear for the hearing, the hearings officer needs to determine if the appellant had good cause for failing to appear. If the hearings officer determines the appellant did have good cause, the hearings officer reopens the appeal. If the hearings officer determines the appellant did not have good cause, the appeal is sent to administrative review. If the appeal is being reopened, the hearings manager sends an email to the hearings administrator.

The database is updated to reflect the decision to reopen the appeal.

If the appeal is not reopened, the request is sent to Regional Legal Services.

The hearings administrator sends an acknowledgement letter to the appellant.

The appellant has the right to submit a brief. The brief should be no more than five pages. For the brief to be considered, the appellant must submit it with the request for administrative review filed with the hearings administrator. The brief must address only the issues that were addressed in the appeal hearing.

 

2130 Assigning the Administrative Review Request

Revision 11-4; Effective June 1, 2011

 

The scanned request and any other documents submitted by the appellant are e-mailed to the Health and Human Services Commission (HHSC) Regional Legal Services and a request is made that an attorney be assigned. The documents are also sent to the appropriate hearings manager.

The e-mail with the scanned documents will include the appeal ID, case name, case number, program, region, hearings officer, date of request and date of decision.

HHSC's Regional Legal Services responds to the e-mail and assigns an attorney.

Hearings staff scan the hearing record and post it to the public folder notifying the assigned attorney via e-mail when it is posted and the file name. The hearing record must be received by the assigned attorney within 10 days from the date of the request.

The assigned attorney will access the hearing record from the public folder and the AVAYA recording from the FairHearAudio folder.

 

2140 Completing the Administrative Review

Revision 10-4; Effective July 16, 2010

 

 

 

2141 Attorney’s Responsibility

Revision 11-1; Effective June 1, 2011

 

Within 15 business days of receipt of the hearing record, the assigned attorney will review the hearing record and issue a new decision.

The decision format will be similar to the one used by the hearings officer. The decision will include any direction to program staff. The cover letter will include how the appellant can request judicial review, the time frames for requesting judicial review and the appropriate legal aid information.

The attorney will provide a copy of the decision to the appellant, appellant's representative and e-mail a scanned copy with all appropriate signatures to the hearings administrator, the director of appeals and the appropriate hearings manager.

If the hearing was related to a Texas Workforce Commission (TWC) sanction, the attorney will also provide a copy to TWC via mail at the following addresses:

Loretta Robertson
Texas Workforce Commission
101 E. 15th Street, Room 440T
Austin, TX 78778
512-936-6265
Fax: 512-463-7379

The attorney may choose to discuss the case with his supervisor. Ex parte communication does not include discussing the decision with supervisors in the attorney's chain of command.

 

2141.1 New Information Received During the Administrative Review

Revision 14-4; Effective November 14, 2014

 

When appeals go to administrative review, appellants often give new information (information the appellant did not offer during the hearing) that the hearings officer may not have considered. Additionally, the appellant may give information directly to the reviewing attorney after the record has gone to administrative review. If the appellant hires an attorney, the attorney may decide to submit a brief to the reviewing attorney. The brief should be no more than five pages.

In both instances, the hearings officer has a chance to decide whether the information would have altered the original decision.

If the appellant offers new information before the appeal goes to administrative review, the appeal goes back to the hearings officer for review. The hearings officer decides if the information is new and if it would have changed the original decision. After reviewing the information, the hearings officer either reopens the hearing or issues a new decision upholding the original decision.

If the hearings officer upholds the original decision, he states that the information given does not constitute new evidence. If the evidence is in fact new information, he states that it would not have altered the original decision. The appeal then goes to the reviewing attorney for administrative review.

If the appellant offers new information after the administrative review has gone to the reviewing attorney, the reviewing attorney sends the case back to the hearings officer. The hearings officer then decides whether the new information would have changed the original decision.

The reviewing attorney may not consider any information in the administrative review that was not available to the hearings officer or not included in the hearing record. The reviewing attorney decides whether the decision was correct in light of the evidence admitted at the hearing and the application of relevant policy (law) to that evidence.

The reviewing attorney may consider legal briefs the appellant submits during the administrative review process, unless they contain any information that was not available to the hearings officer or not included in the hearing record.

If the legal briefs contain new information, the reviewing attorney must send the case back to the hearings officer for consideration, and the hearings officer will make a new decision.

 

2142 Hearings Administrator's Responsibility

Revision 11-4; Effective June 1, 2011

 

Upon receipt of the attorney's decision, the database and tracking spreadsheet will be updated with the outcome and date of decision.

If the decision is a reversal and some action needs to be taken by program, the hearings administrator will direct the hearings manager to send the decision and Form H4807, Action Taken on Hearing Decision, to program and track for completion.

 

2143 Hearings Manager Responsibilities

Revision 10-4; Effective July 16, 2010

 

The hearings manager will provide the decision and Form H4807, Action Taken on Hearing Decision, to the appropriate program staff if the attorney’s decision requires program to take an action, track for completion and provide that information to the hearings administrator.

 

2200 Judicial Review

Revision 10-4; Effective July 16, 2010

 

If an appellant does not agree with the administrative review decision, he can file a request for a judicial review with the courts in Travis County within 30 days of the date of the administrative review decision.

 

2210 Preparing the File

Revision 11-4; Effective June 1, 2011

 

When the agency is served with process and an appellant has filed for judicial review in the courts of Travis County, the following actions are taken.

  • General counsel will notify the Office of the Attorney General that HHSC has been served in a suit for judicial review of an administrative review.
  • The special counsel for litigation will notify TWC's Office of the General Counsel if the suit relates to a board/contractor requested sanction. The attorney contact at TWC is:

    Sheri Sanders Givens
    Assistant General Counsel
    Office of General Counsel
    Texas Workforce Commission
    101 E. 15th Street, Room 608
    Austin, TX 78778
    512-463-6652
    Fax 512-463-1426
  • The special counsel for appeals will be notified so that the hearings administrator can prepare a copy of the file, including a copy of the recorded hearing. The database will be updated.
  • The hearings administrator will prepare the file and provide it to the director of appeals who will certify the record.
  • The certified record will be provided to the agency counsel.

 

2220 Completing the Judicial Review

Revision 11-4; Effective June 1, 2011

 

HHSC Legal Division staff will notify the special counsel for appeals when the district court has issued a decision on the judicial review request.

The special counsel for appeals will notify the appeals director and the hearings administrator of the court's decision.

Upon receipt of the court's decision, hearings staff will update the database and tracking spreadsheet with the outcome and date of decision.

If the decision is a reversal and some action needs to be taken by program, the hearings administrator will direct the hearings manager to send the decision and Form H4807, Action Taken on Hearing Decision, to program and track for completion.

 

2230 Hearings Manager Responsibilities

Revision 10-4; Effective July 16, 2010

 

The hearings manager will provide the decision and Form H4807, Action Taken on Hearing Decision, to the appropriate program staff if the judge’s decision requires program to take an action, track for completion, and provide that information to the hearings administrator.

 

2300 Process and Time Frame for Procedural Reviews

Revision 11-4; Effective June 1, 2011

 

The hearings officer makes the final administrative decision in all appeals not covered under Chapter 31 (TANF), Chapter 32 (Medicaid) or Chapter 33 (Nutrition Assistance Programs) in the Human Resources Code. An appellant or his representative may file a request for a procedural review. Examples of programs eligible for procedural review include Disaster Assistance, Refugee Cash Assistance and In-Home Family Support Services.

When an appellant or appellant's representative does not agree with a hearings officer's decision, he may request a procedural review of the decision within 30 days of the date on the decision. The request must be in writing and postmarked no later than the 30th day. A request for procedural review will be considered timely if filed after 30 days when the appellant demonstrates good cause for the filing delay.

A procedural review is a review of the hearing record by an HHSC Regional Legal Services attorney. The attorney reviews all documentation submitted, listens to the recorded hearing and reviews the hearings officer's decision. A procedural review does not change the outcome of the hearing.

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 begin until a new decision is issued if the appellant or appellant's representative is working with the hearings officer to reopen or reschedule the hearing.

 

2310 Receipt of the Procedural Review Request

Revision 11-4; Effective June 1, 2011

 

Procedural Review requests may be received by fax, mail or e-mail from appellants.

Upon receipt of the request, the hearings administrator’s assistant:

  • enters the request into the tracking system,
  • creates a tracking sheet with pertinent information, and
  • scans the request and e-mails it to the hearings area manager and the Regional Legal Services, which assigns an attorney.

The hearings area manager scans the hearing record and posts it to the public folder notifying the assigned attorney via e-mail when it is posted and the file name. The assigned attorney must receive the hearing record within 10 days from the date of the request.

The attorney will access the hearings record from the public folder and the AVAYA recording from the AVAYA folder.

The hearings administrator sends an acknowledgement letter to the appellant.

 

2320 Completing the Procedural Review

Revision 11-4; Effective June 1, 2011

 

 

 

2321 Attorney’s Responsibilities

Revision 11-4; Effective June 1, 2011

 

Within 15 days of receipt of the hearing record, the regional attorney will review the applicable law, facts and regulations contained in the record developed by the hearings officer.

The regional attorney e-mails the review results to the hearings administrator and hearings manager.

 

2322 Hearings Administrator's Responsibilities

Revision 11-4; Effective June 1, 2011

 

The hearings manager reviews the attorney's opinion and takes appropriate action. A letter to the appellant is developed by the hearings manager explaining the results of the review and any actions that may be taken. The letter is signed by the hearings administrator.

 

2400 Exception Process for Agency and Program Staff

Revision 10-4; Effective July 16, 2010

 

 

 

2410 General

Revision 14-5; Effective December 10, 2014

 

Although program staff may disagree with the hearings officer’s decision, they must carry out the fair hearing decision once it has been made. However, program staff have 20 calendar days from the date of the decision to ask for an exception to the fair hearing decision. The exception process exists to make sure both program staff and hearings officers consistently apply applicable policy.

When a hearings officer issues a fair hearing decision, staff must carry out the decision within the implementation time frames, including restoring benefits to which the appellant is entitled.

 

2420 Initial Review of the Hearing Decision

Revision 10-4; Effective July 16, 2010

 

If program staff disagree with the fair hearing decision and initiate the exception process, a memorandum must be sent to the manager of the fair hearings officer that rendered the decision requesting an informal review of the decision, with a copy to the fair hearings administrator.

The fair hearings manager conducts a preliminary review of the decision, with input from relevant stakeholders and provides a response to program.

 

2430 Memorandum to Program Policy Staff

Revision 10-4; Effective July 16, 2010

 

If program staff still disagree with the fair hearing decision, program staff must send a memorandum to their policy staff with a copy of the hearings officer’s decision and the outcome of the preliminary review conducted by the fair hearings manager. The fair hearings administrator, fair hearings manager and the appropriate program staff must also receive a copy of the memorandum. The memorandum must include:

  • case actions taken by the worker/specialist that led to the appeal;
  • a summary of the hearings officer's decision;
  • points of disagreement; and
  • pertinent policy citations.

 

2440 Response from Program Policy Staff

Revision 10-4; Effective July 16, 2010

 

Program policy staff contact the fair hearings administrator after the memorandum is reviewed and prepares a response to the requestor.

If policy staff agrees with the requestor, it does not change the outcome of the appeal. It does, however, provide guidance for hearings officer and staff concerning correct policy and procedures for future decisions, and allows program staff to correct the case for future benefits.

 

2450 Hearing Manager’s Responsibility in the Exception Process

Revision 10-4; Effective July 16, 2010

 

Upon receiving an exception to a hearings officer’s decision, the manager will review the case record and recording.