13 CSR 40-2.440 - Hearings for Proceedings under

PURPOSE: This amendment removes the automatic right to a hearing for certain types of drug tests and allows affidavits to be submitted into evidence at administrative hearings.

(1) Eligibility for Hearing.

(A) Any applicant for or recipient of Temporary Assistance may request the Director of the Family Support Division to provide an administrative hearing before the Director of the Family Support Division or his/her designee when he/she-

1. Refuses to cooperate with the screening process;

2. Refuses to submit to a drug test; or

3. Tests positive for the illegal use of controlled substances; and

4. Does not participate in an appropriate substance abuse treatment program ; or

5. Fails to successfully complete an appropriate substance abuse treatment program.

(2) Notification of Adverse Action and Hearings.

(A) Notice The Family Support Division shall notify the individual in writing of any action affecting his/her Temporary Assistance benefit(s) as set forth in section (1). The notification shall be sent by mail to his/her address of record at least ten (10) days before the date the action becomes effective. The individual has the duty to notify the Family Support Division of any change in his/her residence address, mailing address, and other contact information.

The notice for administrative hearings shall meet the requirements set out in section 208.080, RSMo, the hearing requirements in 45 CFR 205.10, this regulation, and any other applicable federal statutes or regulations. The individual shall have ninety (90) days from the date of the notice of the action affecting his/her Temporary Assistance benefit(s) in which to request an appeal to the Director of the Family Support Division.

(B) Hearings.

The administrative hearings shall be conducted pursuant to procedures set forth in section 208.080, RSMo, the hearing requirements in 45 CFR 205.10, this regulation, and any other applicable federal statutes or regulations by administrative hearing officers designated by the Director of the Family Support Division.

(3) Hearing Procedure. The following procedure shall apply to administrative hearings required by section (1)

(A) Notice. The hearing officer shall mail a notice of the hearing to the Family Support Division, the individual at his/her address of record, and if appropriate, to the individual's attorney or designated representative. The notice shall include any information required by either Chapter 208, RSMo, 45 CFR 205.10, or any other federal statutes or regulations that are applicable to the hearing being conducted under the authority of section (1) In addition, the following information shall be included in every hearing notice:

1. The caption and number of the case;

2. The time and place of the hearing;

3. The subject of the hearing;

4. That an order will be entered in accordance with the adverse action notice if the individual fails to appear and participate at the hearing;

5. Information on how to contact the hearing officer to request an in-person hearing if the individual has a need for a special accommodation due to a disability; and

6. That the individual may represent him/herself or the individual may authorize another individual, such as legal counsel or a relative, to act as a representative.

(B) No answer or responsive pleading shall be required to respond to any notice affecting his/her Temporary Assistance benefit(s) mailed by the Family Support Division or notice of an administrative hearing provided for under this regulation.

(C) The hearing officer shall set the date and time for the hearing. The hearing may be continued once on request of the individual or the Family Support Division.

(D) The hearing shall be conducted by telephone if the individual agrees, or at the local office of the Family Support Division.

(E) The Family Support Division shall have the burden to establish by a preponderance of the evidence that the individual-

1. Tested positive for the illegal use of a controlled substance;

2. Refused to cooperate or submit to the screening as set forth in 13 CSR 40-2.410;

3. Refused to cooperate or submit to the test for illegal use of a controlled substance as required by 13 CSR 40-2.420;

4. Failed or refused to participate in an appropriate substance abuse treatment program as set forth in 13 CSR 40-2.420; or

5. Failed or refused to successfully complete substance abuse treatment as set forth in 13 CSR 40-2.440.

(F) Affirmative Defenses. The individual shall have the burden of proving any of the affirmative defenses set forth below. Failure to comply with any of the requirements of subsection (3)(F) shall be considered a waiver of the affirmative defenses set forth below.

1. The individual was prescribed drugs by a licensed physician that resulted in the positive test for the illegal use of controlled substances. It shall be presumed that the ingestion of medication prescribed to someone other than the individual subject to the test for illegal use of controlled substances required under section 208.027, RSMo, will not constitute an affirmative defense to excuse or negate the positive test result for the illegal use of a controlled substance.

2. The individual has a medical condition that prevented the individual from submitting a sample for testing for illegal use of controlled substances or from completing an appropriate substance abuse treatment program. The assertion of this affirmative defense shall be governed by the following rule:

A. The individual must produce a copy of medical records and a written report from the individual's physician providing the medical diagnosis along with any supporting medical tests and examinations that establish the existence of the medical condition that the individual asserts prevented compliance with the testing for illegal use of controlled substances or from completing an appropriate substance abuse treatment program.

(G) Evidence at the Hearing.

1. Written medical reports, medical records, reports of medical review officers, chain of custody documentation, drug test results, treatment records from an appropriate substance abuse treatment program, laboratory reports and results, affidavits, and the contents of the aforementioned documents submitted by the individual or the Family Support Division at the hearing are declared to be competent evidence and admissible into evidence at the hearing to be considered by the hearing officer along with any other evidence or testimony submitted.

2. Written medical reports, medical records, reports of medical review officers, chain of custody documentation, drug test results, treatment records from an appropriate substance abuse treatment program, laboratory reports and results, affidavits, and the contents of the aforementioned documents purporting to be executed and signed by the medical doctor or other appropriate authority, its agents or employees accompanied by a business record affidavit that meets the requirements of section 490.692, RSMo, shall be prima facie evidence of it being properly executed and signed without further proof of identification.

3. Written medical reports, medical records, reports of medical review officers, chain of custody documentation, drug test results, treatment records from an appropriate substance abuse treatment program, laboratory reports and results, affidavits, and the contents of the aforementioned documents reporting a positive drug test result shall create a rebuttable presumption that the individual has tested positive for the illegal use of a controlled substance in violation of section 208.027, RSMo, or has failed to successfully complete an appropriate substance abuse treatment program. The entry of the written medical reports, medical records, reports of medical review officers, chain of custody documentation, drug test results, treatment records from an appropriate substance abuse treatment program, laboratory reports and results, affidavits, and the contents of the aforementioned documents reporting a positive drug test result or the failure to successfully complete an appropriate substance abuse treatment program into evidence at the administrative hearing required by either section (1) shall shift the burden of proof to the individual to refute the presumption.

(H) The hearing shall be on the record.

(4) The hearing officer in an administrative hearing requested under section (1) shall make specific written findings of fact and conclusions of law pertinent to the questions in issue. The findings of fact and conclusions of law shall be based solely upon the evidence introduced into the record at the hearing. Copies of the decision of the hearing officer shall be mailed to the individual and their attorney at law or legal guardian and the Family Support Division.

(5) Judicial Review.

(A) Any applicant for or recipient of Temporary Assistance who may request the director provide an administrative hearing under section (1) may obtain judicial review pursuant to section 208.100, RSMo.

Notes

13 CSR 40-2.440

AUTHORITY: section 208.027, RSMo Supp. 2012.* Original rule filed June 29, 2012, effective Feb. 28, 2013. Amended by Missouri Register March 16, 2015/Volume 40, Number 06, effective 4/30/2015

*Original authority: 208.027, RSMo 2011.