40 Tex. Admin. Code § 730.1302 - Fair Hearing Proceedings

(a) The appellant or his representative have the opportunity to:

(1) examine evidence to be used in the fair hearing before the fair hearing if he makes either an oral or written request to the hearing officer;

(2) examine or request copies (at no cost) of all documents and records used at the fair hearing;

(3) present the case personally or with the aid of others, including legal counsel;

(4) bring witnesses;

(5) establish all pertinent facts and circumstances;

(6) present arguments or say anything about the case without undue interference;

(7) present documentary evidence; and

(8) question or refute any testimony or evidence, including an opportunity to confront and cross-examine adverse witnesses.

(b) The hearing officer shares with the appellant any evidence or testimony used in the fair hearing. If essential to the conduct of the fair hearing, the worker or the hearing officer may refer to the case record for information. If the case record is used during the fair hearing, the appellant may ask to see it and to have it placed in evidence. In the case of a food stamp appeal involving the Texas Employment Commission (TEC), the TEC representative sends the hearing officer a copy of the TEC case file. Before the fair hearing, the appellant may examine the case file at the appropriate TEC office or at the office of the hearing officer. The appellant must not be allowed to examine confidential information. TEC determines what information should be protected from release. Information not released to the appellant may not be used by TEC at the fair hearing or considered by the hearing officer in making a decision.

(c) The hearing officer as well as the appellant may bring witnesses to the fair hearing and may also present documentary evidence.

(d) The hearing officer considers the point(s) at issue and all facts pertinent to the appellant's situation as it was when the action was taken. He particularly considers those facts related to the appellant's dissatisfaction.

(e) The hearing officer discusses with the appellant the findings upon which the local worker's action was based. He also explains the applicable law and approved policies as the point(s) at issue is discussed.

(f) The hearing officer is responsible for impartially assisting the appellant in effectively presenting his case.

(g) A representative of the agency that took the action being appealed must explain and defend the decision or action of the program staff. Usually, the representative participates in the fair hearing by telephone. Either the hearing officer or the appellant has the right to request that the representative attend the hearing in person. If the appellant or the hearing officer requests a face-to-face appeal, the hearing officer promptly notifies the DHS representative. In level of care hearings, the representative is only present by telephone.

(h) The hearing officer may determine that the appellant's circumstances have changed since the action being appealed was taken. If so, the hearing officer may direct the worker to adjust the appellant's benefits based on the changed circumstances. In this case, the worker adjusts benefits as soon as possible without the hearing officer's final decision. If the hearing officer determines that the appellant is due restored benefits, the worker must take the action as directed by the hearing officer. If an error is discovered after the request for a fair hearing, the worker or hearing officer may correct the error by granting or adjusting benefits immediately. If the appellant lost benefits to which he was entitled, the worker must process retroactive payments as directed by the hearing officer. This action should not delay or modify the right of the appellant to proceed with the fair hearing. The worker may make the appropriate change in assistance while an appeal is still pending. If the worker adjusts benefits before the fair hearing, the Texas Department of Protective and Regulatory Services (PRS) may provide benefits retroactive to the date of the incorrect action. The worker may make the adjustment immediately at the direction of the hearing officer. In this case the appeal is usually withdrawn. The appellant, however, may continue with the appeal. In this case, no immediate adjustment is requested.

(i) PRS ensures that prompt, definitive, and final administrative action is taken within 90 days from the date of the request for a fair hearing. Action on food stamp cases must be taken within 60 days. The hearing officer notifies the appellant of the decision in writing.

(j) The hearing officer authorizes the worker to process any corrected payments or food stamp benefits being restored to the date of an incorrect action or to the date action should have been taken. The hearing officer also authorizes the worker to credit the restored benefit entitlement to any unpaid overissuance. Except in AFDC cases, retroactive corrective payment is made only for the 12 months preceding the month in which the underpayment is discovered.

Notes

40 Tex. Admin. Code § 730.1302

The provisions of this §730.1302 adopted to be effective April 3, 1987, 12 TexReg 954; amended to be effective June 13, 1988, 13 TexReg 2167; duplicated effective September 1, 1992, as published in the Texas Register September 11, 1992, 17 TexReg 6279.