§ 275.4. Procedures.

 (a)  Requesting a hearing. The following procedures will be employed in requesting a hearing:

   (1)  Aid to clients making appeals. The County Assistance Office or administering or provider agency will provide whatever help the applicant/recipient needs in requesting a hearing. This may include the following:

     (i)   Clearly explaining the basis for questioned decisions or actions.

     (ii)   Explaining the rights and fair hearing proceedings of the applicant/recipient.

     (iii)   Providing the necessary forms and explaining to the applicant/ recipient how to file his appeal and, if necessary, how to fill out the forms.

     (iv)   Advising the applicant/recipient that he may be represented by an attorney, relative, friend or other spokesman and explaining that he may contact his local bar association to locate the legal services available in the county.

     (v)   For food stamps, upon request, making available without charge case record materials relevant to the decision or action of the agency which are necessary for a household or its representative to determine whether a hearing should be requested or to prepare for a hearing. If the individual making the request speaks a language other than English and requires an interpreter pursuant to 7 CFR 272.4(c)(3), the agency shall provide bilingual staff or interpreters to explain the hearing procedures in that language.

   (2)  Method of appeal. Procedures relating to the method of appeal will be as follows:

     (i)   A hearing request must be made to the agency which notified the client of its decision or action. When an appeal is taken, the appeal letter and proposed action must be forwarded to the Office of Hearings and Appeals.

     (ii)   A request for a hearing will usually be made in writing. Appeals must specify the action appealed from and must be signed by the applicant/recipient.

     (iii)   If an oral request for a hearing is made, the agency which receives the request will either give the applicant/recipient the appropriate form to complete or record the request for a hearing with a statement of the action appealed from and the reasons given by the applicant/recipient on the proper form or memorandum, and obtain the signature of the applicant/recipient.

     (iv)   An oral appeal shall be reduced to a written appeal by the client within 3 working days after the oral appeal was made. The County Assistance Office, Title XX administering or service provider agency will aid the appellant in reducing that oral request to writing. If the oral appeal is not reduced to writing and signed by the client within this time period, the appeal will not be considered as perfected. The County Assistance Office, Title XX administering or service provider agency will send to the Office of Hearings and Appeals a notation of the oral appeal; the written confirmation of that appeal signed by the client, if appropriate; and a copy of the proposed action or decision taken by the County Assistance Office, Title XX administering or service provider agency within 3 working days after receipt of the written appeal.

     (v)   Every appeal must bear the signature of the applicant/recipient.

     (vi)   For food stamps, the provision for reducing an oral appeal to writing in paragraphs (2)(ii), (iii), (iv) and (v) will not apply. A food stamp appeal may be made orally or in writing by the household or its representative. If an oral appeal is made, the County Assistance Office will send to the Office of Hearings and Appeals a notation of the oral appeal and a copy of the proposed action or decision taken by the County Assistance Office, if any, within three working days after receipt of the oral appeal.

     (vii)   All appeals must be made to the County Assistance Office, administering agency or provider agency which notified the applicant/ recipient of its decision or action. The agency which receives the request will stamp the appeal upon receipt and forward it to the Office of Hearings and Appeals within 3 working days.

   (3)  Agency staff responsibility upon receipt of a hearing request. Agency staff responsibility upon receipt of a hearing request will be as follows:

     (i)   When the County Assistance Office, administering agency, or provider agency receives a request for a hearing in whatever form as provided in subsection (a)(2), it will date stamp it upon receipt and review the complaint of the appellant to assure itself that the decision in question is in accordance with Departmental regulations and policies and to determine what additional step, if any, should be taken to resolve the issue without a hearing.

     (ii)   The County Assistance Office, administering agency, or provider agency shall offer the appellant the opportunity for an agency conference to resolve, if possible, the appeal. In food stamp appeals, the agency conferences shall be attended by an eligibility supervisor or his representative, or both. An agency conference for households contesting a denial of expedited services for food stamps shall be scheduled within 2 working days, unless the household requests a later conference date. The appellant shall be advised that the agency conference is optional and that it shall in no way delay or replace the fair hearing process. An agency conference may result in resolution of the dispute. If this occurs, the hearing examiner must be notified in writing. If not, a fair hearing must still be held.

     (iii)   When the County Assistance Office, administering agency, or provider agency receives an oral request for a hearing, it will immediately make a written notation with the date of the oral request and obtain the signature of the appellant on the proper form as described in paragraph (2)(iii).

     (iv)   For food stamps, the provision for reducing an oral appeal to writing in paragraph (3)(iii) will not apply. A food stamp appeal may be made orally or in writing by the household or its representative. If an oral appeal is made, the County Assistance Office will send to the Office of Hearings and Appeals a notation of the oral appeal and a copy of the proposed action or decision taken by the County Assistance Office, if any, within 3 working days after receipt of the oral appeal as described in paragraph (2)(vi).

     (v)   Appeals to be scheduled for a hearing must be forwarded to the Office of Hearings and Appeals within 3 working days from the date the appeal was received and date stamped, as described in clauses (B) and (E).

       (A)   Agency decision correct. If the agency which received the hearing request determines that the decision in question is in accordance with departmental regulations, it will forward the appeal to the Office of Hearings and Appeals within 3 working days from the time the appeal is received for scheduling of a fair hearing.

       (B)   Agency decision not correct. If the agency decision is incorrect, the following procedure will apply:

         (I)   If the agency which receives the hearing request determines that the decision in question does not accord with Departmental regulations or policies or if new or additional information is introduced which alters the decision, it will take corrective action. If a payment is involved, the corrected payment will be made retroactive to the date the incorrect action was taken as described in §  227.24 (relating to procedures).

         (II)   If the appellant is awarded a corrective payment from the County Assistance Office, the County Assistance Office will present the client with a written statement with an explanation for the payment. However, a corrective action or payment will not interfere with, cancel or otherwise affect the right of the appellant to proceed with the hearing. If the appellant is satisfied with the corrective action or adjustment and wants to withdraw his request for a hearing, his withdrawal must be in writing as described in subsection (e)(2). The agency which receives the written withdrawal will forward it to the Office of Hearings and Appeals and notify the representative of the appellant, if known.

       (C)   An appeal received from a proposed action. Procedures for an appeal received from a proposed action will conform with the following:

         (I)   When an applicant/recipient responds to a written notice by requesting a hearing within the specified time period as described in §  133.4 (relating to procedures), the agency receiving the hearing request will date stamp the form upon receipt, review the complaint as required in this paragraph, and forward the appeal to the Office of Hearings and Appeals within 3 working days from the time the appeal is received from scheduling a fair hearing. In cases in which a hearing is requested within the specified time period, assistance will be continued pending the hearing decision unless the client waives continuation of benefits.

         (II)   For food stamps, a household may waive continuation of benefits by indicating on the appeal form that the household does not desire benefits be continued pending the hearing decision. If the form does not positively indicate that the household has waived continuation of benefits and the certification period has not expired, the County Assistance Office shall assume that continuation of benefits is desired and the benefits shall be issued accordingly. The County Assistance Office must promptly inform the household in writing if benefits are reduced or terminated pending the hearing decision.

         (III)   When a change affecting the grant or food stamps of the recipient occurs while the hearing decision is pending and the recipient fails to appeal after notice of the change, the county office, administering agency or provider agency will take its proposed action required by this latest change.

         (IV)   If an appeal from a proposed action is received in the County Assistance Office, administering agency or provider agency after the specified time period and the action has been taken as described in §  133.4, the agency receiving the appeal will review the action taken and proceed in accordance with this paragraph or clause (E), whichever is appropriate. When a food stamp household establishes that its failure to appeal within the advance notice period was for good cause, the County Assistance Office shall reinstate benefits to the prior basis of issuance pending the hearing decision.

         (V)   When an appeal is received within the time specified in §  275.3(b) (relating to requirements), after an action to reduce, suspend or discontinue a grant, food stamps, medical assistance or social services has been taken and a written notice should have been sent but was not, assistance will be reinstated effective the date the action was taken. The agency receiving the appeal will promptly provide the client with a written statement detailing the reasons for the action and immediately obtain the reasons of the client for his disagreement with the proposed action as described in paragraph (2). The documentation thus obtained will be forwarded within 3 working days to the Office of Hearings and Appeals with a memorandum explaining the circumstances involved for scheduling a fair hearing. Assistance will be continued pending the hearing decision.

       (D)   An appeal received from a food stamp written notice. When a Food Stamp client responds to a written notice as a result of disagreement with the proposed participation rate, or being declared ineligible on initial or subsequent applications, or as a result of changes occurring at the end of the normal certification period, food stamp benefits will be authorized or continued only in the amounts determined at such initial application or subsequent certification or recertification.

       (E)   Agency staff responsibility after review. If the issue is not resolved to the satisfaction of the appellant after the agency review, or if the appellant wants to proceed with the hearing, the agency receiving the appeal will do the following:

         (I)   Consider that an appeal of a denial, reduction or discontinuance made within the time limitations as described in §  275.3(b) obviates the requirement of a reapplication by the appellant.

         (II)   Make available without charge to the appellant or his representative on as early a date as possible prior to the hearing the following: sentative on as early a date as possible prior to the hearing the following:

           (-a-)   Information contained in the case record upon which the decision or action is based and which the county office or administering agency or provider agency will introduce as evidence at the hearing as well as other case record materials which are relevant to the issues raised by the appeal as described in §  275.3(a)(3).

           (-b-)   The names of the County Assistance Office staff members and, if appropriate, the names of staff members of administering or provider agencies who will be present at the hearing. Staff members who are directly involved with making the decision or initiating the action must be present.

           (-c-)   Forward the request for a hearing to the Office of Hearings and Appeals within 3 working days from the time it is received and date stamped.

       (F)   Communication with the hearing officer. Procedures relating to communication with the hearing officer will be as follows:

         (I)   Until the time of the fair hearing, only the written notice of the Department to the applicant or recipient or any other written statement used by the appellant to request a hearing will be available to the hearing officer. Where there is no notice of the action of the county, the administering or provider agency, the agency, upon request of the hearing officer, will prepare a written explanation of its decision for the hearing officer with a copy sent to the appellant and his representative.

         (II)   After the written notice or other statement is submitted to the Office of Hearings and Appeals, no further communication with the hearing officer prior to the hearing by the appellant or the county office, administering agency or provider agency regarding the appeal or the basis for the action of the agency will be permitted except as provided in §  275.3(a)(3), or to request continuances, or to withdraw the action or the appeal, or to request a subpoena of evidence or witnesses.

 (b)  Time limits. Time limits will be in accordance with the following:

   (1)  Final administrative action must be taken in hearings within the following time limits: 60 days from the date of an appeal from an agency decision affecting food stamps, and 90 days from the date of an appeal from an agency decision affecting cash assistance, medical assistance, or social service.

   (2)  Final administrative action will include a hearing and subsequent decision by the hearing officer, optional review by the Secretary or his designee as provided in subsection (h)(4), and, where the appeal of the appellant is sustained, immediate implementation of the hearing decision by the appropriate agency.

   (3)  For food stamps, when the hearing decision results in an increase in household benefits, the County Assistance Office must adjust the coupon allotment within 10 days of the receipt of the decision. If necessary, the County Assistance Office will provide a supplementary ATP or otherwise provide the household with an opportunity to obtain the allotment outside of the normal issuance cycle; however, the County Assistance Office may take longer than 10 days if it elects to increase the allotment in the household’s normal issuance cycle provided that the issuance will occur within 60 days from the date the appeal is filed.

   (4)  If the appellant has not received final administrative action within the specified time limits, the appropriate agency will proceed in accordance with subsection (d).

 (c)  Central office control. Central office control will be in accordance with the following:

   (1)  When a request for a hearing is received, the Office of Hearings and Appeals will establish a control for 60 or 90 days from the date of appeal, whichever is applicable, excluding appeals which involve only a claim for a one-time grant as described in §  175.23 (relating to requirements), §  227.24 (relating to procedures) and §   229.24 (relating to procedures); or when assistance is continued pending a hearing decision because an appeal from a proposed adverse action was filed within the advance notice period. If food stamps together with another type of assistance are involved in an appeal, both a 60-day and 90-day control will be set.

   (2)  In cases where the appellant is responsible for delaying the hearing process, as described in subsection (e), the time limit for final administrative action will be extended by the length of the delay. For example, if the appellant requests a continuance of a hearing for 10 days, final administrative action will then be required within 70 days for food stamps or within 100 days for other assistance. In those cases that have been delayed for this reason, the hearing officer will send written notification to the Office of Hearings and Appeals.

 (d)  Interim assistance. When final administrative action has not been rendered within the applicable time limit as described in subsection (c), the office of the appropriate Deputy Secretary will notify the county office, administering, or provider agency to authorize the assistance which the appellant has requested in his appeal until final administrative action is rendered. Interim assistance will be authorized effective with the first day after the applicable time limit expires. When the appeal involves more than one type of assistance, the appropriate agency will authorize an assistance benefit.

   (1)  PA and MA. Cash assistance and medical assistance will be authorized in the appropriate category, that is, AFDC, AFDC-CU and GA, in the usual manner, as described in §  225.24(c) (relating to procedures). The CAO will issue the appropriate MA Identification Card and submit the Form PA 743 Documents in the usual manner. The assistance will be continued until final administrative action is rendered.

   (2)  Food stamps. Interim food stamp assistance will be authorized in the usual manner with the appropriate coding. Food stamps will be continued until final administrative action is rendered.

   (3)  Reporting. The CAO will prepare monthly reports on cases in which interim assistance is authorized. Reports will be prepared on the last day of the month and sent within 5 days from the previous reporting period to the Office of Hearings and Appeals which will forward them to the Office of the Deputy Secretary of Income Maintenance. The information required must be reported on an individual case basis. The county office must ensure that the amount of interim assistance listed is accurate. In all cases, the amount will be the difference between what the appellant claims he is entitled to and what the CAO determines the appellant is eligible to receive. In no case may the amount of cash assistance be greater than the amounts specified in the allowance schedule as described in §  175.23(a), nor the allotment be greater than the amounts specified in the Basis of Issuance Table except when the client is entitled to a special item allowance as described in §  175.23(b) and (c). The following are examples of report preparation:

     (i)   An applicant who appeals the decision of the county to adjust $50 monthly against his family size allowance of $159 will be granted the $50 monthly as interim assistance after the expiration of the 90-day period. On the monthly report, the CAO will list $50 as the amount of interim assistance as follows:

(A)Monthly amount of assistance to which appellant is entitled:$159
(B)Monthly amount of assistance to which appellant is entitled by Departmental standards:$109
(C)Monthly amount of interim assistance, (A) minus (B):$50

     (ii)   A four-person food stamp household with net monthly income of $560 will take exception to the computation. Applicant claims deductions for utilities will exceed the amount allowed and net income should be $510. Interim food stamps will be authorized after the expiration of the 60-day period using the basis of issuance table and the net income claimed by the client. The monthly report will be prepared as follows:

       (A)   Amount of coupons to which appellant claims he is entitled:

   Coupons…$24

       (B) Amount of coupons to which appellant is entitled by Departmental standards:

   Coupons…0

       (C) Monthly amount of interim assistance, (A) minus (B):

   Total…$24

   (4)  Restitution. Interim assistance will not be subject to restitution except in the case of deliberate misrepresentation of facts by the appellant.

   (5)  Appellant request for interim assistance. When the appellant or his representative requests interim assistance by telephone or in writing, the Executive Director or his delegate of the agency against which the appeal was made will investigate the complaint and authorize interim assistance within 48 hours effective with the first day after the applicable time limit expires if the investigation confirms that interim assistance is due. The representative of the appellant will, if requested, confirm in writing the information given to the Executive Director by telephone. If the agency director determines that interim assistance is not due, notice of denial of interim assistance will be provided in writing to the appellant and representative.

 (e)  Scheduling the hearing. Hearings will be scheduled in accordance with the following:

   (1)  Hearings will be scheduled to be held as soon as possible, allowing at least 10 days notice to be given to the appellant and his representative or a lesser time if requested by the household.

   (2)  For food stamps, hearing requests from households, such as migrant farmworkers, that plan to move from the area before the hearing decision would normally be reached, shall be expedited to enable them to receive a decision and a restoration of benefits if the decision so indicates as described in subsection (h)(3)(iii) before they leave the area.

   (3)  The appellant who wishes to postpone the hearing shall contact the hearing officer and provide a reason for the request. The hearing officer may approve the request for postponement or continuation of the hearing. The hearing will be rescheduled as soon as possible.

   (4)  For food stamps, an appellant may request and is entitled to receive a postponement of the hearing for up to 30 days. The hearing officer shall grant the postponement which may not exceed 30 days.

   (5)  In cases where the appellant is responsible for delaying the hearing process, the time limit for final administrative action is extended by the length of the delay as described in subsection (c).

   (6)  When the hearing issue involves an overpayment or reimbursement claim as described in §  275.1 (relating to policy), the County Board of Assistance will notify the Bureau of Claim Settlement in Harrisburg of the issue. Reference should be made to the exception as described in §  275.1.

     (i)   Group hearings. Group hearings will be held under the following circumstances:

       (A)   Whenever two or more requests for a hearing are received from appellants residing in the same county, and the issues are the same in that the sole issue involved is one of a Departmental regulation, and the facts are not in dispute, the hearings may be consolidated into a single group hearing. The scheduling and conducting of a group hearing will be discretionary with the hearing officer.

       (B)   In group hearings, the regulations pertaining to fair hearings will apply. Thus, an appellant will be entitled, if he so desires, to present his own case and be represented.

       (C)   A client may request that his hearing be conducted as part of a group hearing. A client may demand that his hearing not be part of a group hearing.

     (ii)   Hearing withdrawn. Hearing requests will be withdrawn only in accordance with the following:

       (A)   A request for a hearing which meets the conditions as described in §  275.1 can only be dismissed without a hearing when it has been withdrawn by the appellant or his authorized representative in writing. Under no circumstances may the County Assistance Office, administering agency or provider agency attempt to convince the appellant to withdraw his appeal.

       (B)   If the appellant decides to withdraw his request for a hearing after the appeal has been forwarded to the Office of Hearings and Appeals, the appropriate agency will immediately notify the Office of Hearings and Appeals and send a copy of the withdrawal date stamped.

     (iii)   Hearing abandoned. Appeals will be considered abandoned in accordance with the following:

       (A)   If the appellant or his representative fails to appear at the scheduled hearing without good cause as determined by the hearing officer, the appeal will be considered to be abandoned and will be dismissed.

       (B)   If the agency against which the appeal was made fails to appear at the hearing, the appeal of the appellant will be sustained by the hearing officer who will notify the agency of this decision in writing.

       (C)   If neither the appellant nor the appropriate agency or their representatives appear at the hearing, the hearing officer will reschedule the hearing.

 (f)  Conducting the hearing. The hearing will be held before a hearing officer. The hearing officer will be a qualified agency official who has not been involved in any way with the decision or action in question or with the person or officer who is responsible for the decision or action up to the time of the hearing. The responsibilities of the hearing officer in conducting the hearing are as follows:

   (1)  To conduct the hearing in an orderly but informal manner.

   (2)  To obtain from the appellant and agency staff members relevant testimony pertaining to the issues in question and to limit the testimony to that which has bearing on the issues involved.

   (3)  To provide the appellant and the agency representatives with the opportunity to present their case in an orderly manner, to present witnesses, to cross-examine witnesses and to advance pertinent facts or arguments.

   (4)  To assure that documents and records presented or referred to at the hearing are made part of the hearing transcript. Persons at the hearing have the right to examine documents and records used as evidence.

   (5)  To obtain at agency expense and make part of the record a medical assessment other than that of the persons involved in making the original decision when the hearing involves medical issues such as those concerning a diagnosis, the report of an examining physician or the decision of a medical review team, and the hearing officer considers it necessary.

   (6)  To render a decision based upon the facts and evidence as applied to Departmental regulations.

 (g)  Hearing proceedings. Hearing proceedings will conform with the following:

   (1)  The proceedings will follow this order:

     (i)   The hearing officer will open with a statement of the purpose of the hearing, the procedure it will follow, who the deciding authority is and the way the decision will be transmitted to the appellant.

     (ii)   The hearing officer will ask the appellant to state the issue or issues so that they are identified at the commencement of the hearing.

     (iii)   The county or other appropriate agency will present its case, the facts and events leading to the decision which will be the basis for the decision or action, and the pertinent regulations involved.

     (iv)   After a witness testifies, the appellant or his representative may cross-examine the witness.

     (v)   The appellant will present his case.

     (vi)   After a witness testifies, the agency or its representative may cross-examine that witness.

     (vii)   The hearing officer may question any witness or party at any time.

     (viii)   Before terminating the hearing, the hearing officer will ask the appellant and his representative whether he wishes any further opportunity to speak or whether he has presented his case fully.

     (ix)   The hearing officer may continue the hearing or adjourn it to another date. If the appellant has requested a continuance or is in some other manner responsible for a delay, the time for final administrative action will be extended by the length of the delay as provided in subsection (c).

   (2)  Agency staff responsibility at the hearings. The County Assistance Office and other agencies as appropriate will prepare for the hearing so that evidence considered in making the decision or taking the action which is at issue and evidence that supports that decision or action will be introduced at the hearing in an orderly and concise manner. Relevant information which is presented at a hearing will include the following:

     (i)   Names, relationships and ages of the persons affected, and the type of assistance involved.

     (ii)   The decision or action which prompted the request for the hearing.

     (iii)   Description of the relevant facts and events leading to the decision or action plus evidence to support the decision or action, including identification of the pertinent regulations applied in making the decision.

     (iv)   Detailed computation of the grant, allowances and income, before and after implementation of the agency decision or action.

   (3)  The County Assistance Office or other appropriate agency may be assigned legal representation at a hearing. When an attorney is assigned, the agency will make available to him the evidence it possesses regarding the decision and situation of the appellant plus additional information the attorney may request to prepare his case. The attorney will then be responsible for seeing that relevant testimony, evidence and the like is introduced at the hearing.

   (4)  If legal representation has not been assigned and the agency believes it would benefit from the services of a lawyer, it may request legal representation from the Office of Legal Counsel of the Department.

   (5)  At hearings when the agency has not been assigned legal counsel, the presentation of the relevant information will be made by agency staff.

   (6)  Since the hearing decision will be based solely on the information presented at the hearing as described in subsection (h)(2), failure to introduce relevant evidence may result in an adverse decision if the evidence presented is inadequate to support the decision.

   (7)  At the time of the hearing, the agency against which the appeal is made will be responsible for seeing that their case record contains current information on the issue or issues at question.

 (h)  Hearing decisions. Hearing decisions will conform with the following:

   (1)  Hearing authority. Hearing authority will conform with the following:

     (i)   The hearing authority will be the Secretary of the Department.

     (ii)   The designated hearing officer will have the delegated authority from the Secretary to make the decision on the appeal. Decisions will, therefore, be rendered in the name of the Department and will be binding on the County Board of Assistance. Administering or provider agencies involved shall be similarly bound by the decision of the designated hearing officer, subject to their right to appeal from that decision to Commonwealth Court. Provisions of the decision will be promptly carried out.

     (iii)   The Office of Hearings and Appeals is under the direct supervision of the Secretary or his designee. The function of the hearing officer in rendering a hearing decision will be as follows:

       (A)   To determine the facts.

       (B)   To determine the appropriate regulations that apply.

       (C)   To determine the action that should be taken in relation to the established facts and correct application of Departmental regulations.

     (iv)   Hearing officers may not render a decision on the validity of a Departmental regulation nor may they invalidate or modify a Departmental regulation. Hearing officers must, when necessary, interpret regulations when regulations are ambiguous. Hearing decisions receiving final administrative action are restricted to the case at issue and do not create a precedent or apply to an entire class unless the hearing involves an entire class as defined in subsection (e)(6)(i).

   (2)  Basis for hearing decision. Hearing decisions will be based on the following:

     (i)   The hearing officer will restrict his decision to the hearing record, which will consist of testimony and exhibits introduced into the hearing and the notice of action taken by the agency and the appeal of the client. The hearing officer will make his adjudication in accordance with regulations established by the Department which have been promulgated in accordance with the Commonwealth Documents Law.

     (ii)   Medical report or reports obtained at the direction of the hearing officer as described in subsection (f) will become part of the hearing record.

     (iii)   Briefs and exhibits will be due at the time of the hearing. If either the agency or the appellant wishes to present additional exhibits after the conclusion of the hearing, the hearing officer may allow the record to be kept open for 5 working days for the exhibits which include briefs. Copies of exhibits introduced into the record, after the conclusion of the hearing, will be given to the hearing officer, the appellee, the appellant and his representative. Briefs may be accepted later than 5 working days, but not beyond 30 days after the hearing, if the appellant provides the hearing officer with an affidavit that the appellant has requested information from a third party which cannot be provided within 5 working days. If the appellant or his representative is waiting for information from a third party, a delay beyond 5 days will extend the time for final administrative action by the length of the delay as described in subsection (c).

   (3)  Notice of decision. Notices of hearing decisions will conform with the following:

     (i)   The notice of decision will specify the reasons for the decision and identify the supporting evidence. The notice of decision will also specify the eligibility of the appellant and, if relevant, the amount of grant, food stamps, medical assistance or social services for which the appellant is eligible. In addition, it will inform the appellant or provider that he has the right to appeal the decision to the Commonwealth Court if he is dissatisfied with it.

     (ii)   If an underpayment in the cash grant is involved, a corrective payment will be authorized retroactively to the date the incorrect action or inaction was taken or was not taken. When the hearing decision sustains a proposed adverse action of the County Assistance Office and assistance has been continued pending the hearing, overpayment will occur for assistance received immediately following the expiration of the advance notice period. Referral will be made to the Bureau of Claim Settlement in accordance with §  255.4(f) (relating to procedures).

     (iii)   If food stamps are involved, lost benefits will be restored retroactively as described in §  541.3(i) (reserved). For households, such as migrant farmworkers, that plan to move from the area, the County Assistance Office will restore benefits to the household before their departure whenever possible. If benefits are not restored prior to the departure of the household, the County Assistance Office will prepare the Form FNS-286 as described in §  541.3(i)(10) and will forward the Form FNS-286 together with the hearing decision to the household or to the new County Assistance Office if this information is known. The new County Assistance Office will issue the appropriate benefits. Where food stamp benefits are continued during the pendency of the appeal and the hearing officer finds against the appellant, a claim, Form PA 189-SP, will be filed for the bonus coupons overissued prior to and during the pendency of the appeal.

     (iv)   When the proposed action of the County Assistance Office to reduce, suspend or terminate a grant, food stamps, medical assistance, or social services is sustained, the action will be taken effective the first payment date, issuance date and the like whose deadline can be met following the decision.

     (v)   At the same time the written notice of decision is sent to the appellant, copies will be sent to the agency Executive Director and the representative of the appellant, if any. The hearing officer must sign the copies of the hearing decision letter.

   (4)  Review by the Secretary. Review by the Secretary may be made under the following circumstances:

     (i)   The Director of the Office of Hearings and Appeals will affirm, amend, reverse or remand a hearing examiner’s decisions. Reversal by the Director will be confined to matters of law and established Departmental policy; no findings of fact made by the hearing examiner will be subject to reversal. The Director may, however, remand the case to the hearing examiner for further findings of fact. If the decision of the hearing examiner is reversed, the reasons for the reversal will be provided to the appellant in writing by the Director of the Office of Hearings and Appeals.

     (ii)   Either party to a proceeding has 15 days from the date of the decision of the Director of the Office of Hearings and Appeals within which to request reconsideration of that decision by the Secretary of the Department. The request must be in writing and must set forth in detail the basis upon which the request is made. The request should be addressed to the Secretary, but delivered to the Director, Office of Hearings and Appeals, who, upon receipt of a request for reconsideration, will forward the entire file and the request to the Secretary within 1 working day of the receipt of the request. The Secretary will, within 15 working days from the date the request is received, respond in writing to the request. The Secretary may affirm, amend, or reverse the decision of the Director, or remand the case to the hearing officer for further findings of fact. Actions taken by the Secretary will be confined to matters of law and established departmental policy; no findings of fact made by the hearing examiner will be subject to reversal. The Secretary may, however, remand the case to the Director for further findings of fact.

     (iii)   Requests for reconsideration will stay action proposed in the decision of the Director.

     (iv)   In cases where there is a request for reconsideration, the time limit, 30 days, for appealing the decision of the Department to the Commonwealth Court will begin on the date the Secretary responds to the request.

     (v)   The request of the appellant for reconsideration and the response by the Secretary will not be subject to the time limits specified in subsection (b).

   (5)  Digest of hearing decisions. The Office of Hearings and Appeals will prepare a digest of hearing adjudications which will contain the following:

     (i)   The month and year of the decision, with a code for Office of Hearings and Appeals identification of the case.

     (ii)   The pertinent PA Manual reference.

     (iii)   A statement of the issue.

     (iv)   Excerpts of the decision setting forth the facts established at the hearing.

   (6)  Stenographic record. In all appeal proceedings, a stenographic record of the proceedings will be kept. The record need not be transcribed unless the purchase of a transcribed copy is desired by a party or an appeal to Commonwealth Court is filed and in such case, only if the transcription is ordered by the Court.

Authority

   The provisions of this §  275.4 issued under sections 201(2) and 423 of the Public Welfare Code (62 P. S. § §  201(2) and 423); amended under sections 201(2) and 403(b) of the Public Welfare Code (62 P. S. § §  201(2) and 403(b)).

Source

   The provisions of this §  275.4 amended through July 2, 1982, effective July 3, 1982, 12 Pa.B. 2066; amended December 16, 1994, effective December 17, 1994, 24 Pa.B. 6300. Immediately preceding text appears at serial pages (133578), (117277) to (117278), (130801) to (130802), (117281) to (117284), (181747) to (181748), (117287) to (117290), (168691) to (168692) and (175305) to (175306).

Notes of Decisions

   Application

   Where provider hearing is conducted by hearing attorney, finder of fact is Director of Office of Hearing and Appeals, not hearing attorney. This chapter addresses hearing rights of welfare recipients and public assistance applicants, not hearing rights of providers. Northwestern Institute of Psychiatry v. Department of Public Welfare, 513 A.2d 495 (Pa. Cmwlth. 1986).

   The provisions of this subsection (f)(5) apply to hearings involving recipients of state assistance funds, and have no application to proceedings under the Mental Health and Mental Retardation Act of 1966 (50 P. S. §  4101 et seq.). Tartaglia v. Department of Public Welfare, 416 A.2d 608 (Pa. Cmwlth. 1980).

   Collection Attempts

   The contract embodying the agreement between the hospital and the individual doing business as a medical assistance counseling service required the individual to process medical assistance eligibility applications for the hospital’s patients and, on its face, falls far short of constituting substantial evidence to support the Department of Public Welfare’s determination that the individual was acting as a collection agency. The fact that an individual receives remuneration from the hospital for services has no relevance to the question of whether the individual is entitled to represent a patient before the Office of Hearing and Appeals. Nolan v. Department of Public Welfare, 673 A.2d 414 (Pa. Cmwlth. 1995).

   Discretion

   It was not an abuse of discretion for the hearing examiner to not order a medical assessment of a claimant if the claimant testified that he was not under the care of a doctor for the back injury and claimant was not taking any medication for his alleged disability other than aspirin. Morris v. Department of Public Welfare, 414 A.2d 176 (Pa. Cmwlth. 1980).

   General Comments

   The Commonwealth Court affirmed its previous holding in Ormes v. Department of Public Welfare, 98 Pa. Cmwlth. 588, 512 A.2d 87 (1986), that this regulation is inconsistent with Pa. R.A.P. 1701(b)(3). Modzelewski v. Department of Public Welfare, 531 A.2d 585 (Pa. Cmwlth. 1987).

   Hearing Proceedings

   Where the assistance office did not give the appellant an opportunity to examine materials upon which the assistance office decision was based, the computation sheets were not part of the record and the staff member directly involved in initiating the action against the recipient was not present at the hearing, the Department of Public Welfare deviated from appeal and fair hearing procedures and denied the appellant an opportunity to challenge the eligibility determination. Knox v. Secretary of Public Welfare, 573 A.2d 261 (Pa. Cmwlth. 1990).

   A Department of Public Welfare adjudication in which a petitioner who represented pro se requests modification of a liability assessment on the grounds that the petitioner’s income has decreased is not in accord with law if the hearing examiner failed to ask the petitioner to state the issues at the commencement of the hearing and failed to settle the issue of whether the petitioner had a loss of income and, if so, the effect of such loss on petitioner’s liability. Brandt v. Department of Public Welfare, 427 A.2d 758 (Pa. Cmwlth. 1981).

   Reconsideration

   There is no provision limiting this regulation to only non-lawyer spokespersons who do not charge for their services and there was no evidence that plaintiff, doing business as a medical assistance counseling service, was actually portraying to the public that plaintiff had the authority to practice law as prohibited by 42 Pa.C.S. § §  2524 and 7311(c). Consequently, the Department of Public Welfare’s interpretation of its regulations to add the condition that a spokesperson cannot receive remuneration for services in processing medical assistance applications is plainly inconsistent with this regulation and, further, constitutes impermissible rulemaking. Nolan v. Department of Public Welfare, 673 A.2d 414 (Pa. Cmwlth. 1995); appeal denied 683 A.2d 887 (Pa. 1996).

   An untimely request for reconsideration, filed in reliance on this section one day before the Court’s decision to invalidate this section (Ormes v. DPW, 98 Pa. Commw. 588, 591 note, 512 A.2d 87, Note 5 (1986)), was deemed to be proper for purposes of allowing the petitioner to appeal the case on the merits. Mozier v. Department of Public Welfare, 538 A.2d 125 (Pa. Cmwlth. 1988).

   Subsection (h)(4)(ii) is inapplicable to a case involving public facility reimbursements. Westmoreland Manor v. Department of Public Welfare, 496 A.2d 1282 (Pa. Cmwlth. 1985).

   Director of Hearings and Appeals acted within the director’s authority when he unilaterally, without taking additional testimony, issued a decision reversing the hearing officer. E.C.C. Retirement Village v. Department of Public Welfare, 492 A.2d 466 (Pa. Cmwlth. 1985).

   A finding of fact by the Hearing Examiner is not subject to reversal, in conformance with subsection (h)(4)(ii), if it is supported by substantial evidence. Augelli v. Department of Public Welfare, 468 A.2d 524 (Pa. Cmwlth. 1983).

   Findings of fact made by the Hearing Examiner will not be subject to reversal by the Director whose role is confined to matters of law. Klingerman Nursing Center, Inc. v. Department of Public Welfare, 458 A.2d 653 (Pa. Cmwlth. 1983).

   If an appellant merely indicates in a form requesting an appeal that the matter was wrongly decided, the appeal will not be dismissed. Casey v. O’Bannon, 536 F. Supp. 350 (E.D. Pa. 1982).

   It is well within the province of the Director to reverse the hearing examiner for the purpose of upholding (1) the legal principle that approval of training programs is within the administrative discretion of the Department of Public Welfare (DPW), and (2) the established departmental policy that participation in a DPW-approved program is a prerequisite to a training allowance grant. Holloway v. Department of Public Welfare, 445 A.2d 1329 (Pa. Cmwlth. 1982).

   The failure of the Secretary to specify reasons, evidence and regulations in support of her decision to deny a request for consideration violated 45 CFR 205.10(a)(15) and 2 Pa.C.S. §  507, even though subsection (h)(4)(ii) is silent on the issue of what shall be included in the Secretary’s response to a request for reconsideration. Heinsohn v. Department of Public Welfare, 445 A.2d 271 (Pa. Cmwlth. 1982).

   Under 55 Pa. Code §  275.4(f) and (h)(1) and (h)(2), the hearing examiner is required to consider all the facts in evidence at the hearing, not just the evidence before the county office. Matthews v. Department of Public Welfare, 443 A.2d 1362, 1365 (Pa. Cmwlth. 1982).

   Because the optional review of the decision of the hearing examiner by the Hearing and Appeals Unit does not precede the pre-termination hearing which itself provides the necessary effective opportunity to defend by confronting any adverse witnesses and by presenting arguments and evidence orally, the optional review is consistent with principles of due process. Morris v. Department of Public Welfare, 414 A.2d 176 (Pa. Cmwlth. 1980).

   Reversal of the decision of a hearing examiner was proper, since such decision was based solely on hearsay evidence which had been properly objected to. Beard v. Department of Public Welfare, 400 A.2d 1342 (Pa. Cmwlth. 1979).

   Representation

   If a recipient chooses to be unrepresented by counsel and fails to present any witness on his behalf and to cross-examine other witnesses effectively, the recipient cannot lay any blame for that situation on the Department of Public Welfare. Morris v. Department of Public Welfare, 414 A.2d 176 (Pa. Cmwlth. 1980).

   State Regulations

   A hearing officer is bound to make an adjudication in accordance with regulations promulgated by the Department of Public Welfare. Policy clarifications and HCFA Transmittals are not duly promulgated regulations and do not supersede regulations. Heffelfinger v. Department of Public Welfare, 789 A.2d 349 (Pa. Cmwlth. 2001).

   State regulations providing a county assistance office with the right to seek reconsideration by the Secretary of Department of Public Welfare do not conflict with, and therefore, are not preempted by Federal regulations under which the State welfare agency must notify a Medical Assistance recipient of a decision and their right of reconsideration, if such is available. Mosely v. Department of Public Welfare, 598 A.2d 317 (Pa. Cmwlth. 1991).

   Time Limits

   Appeal of parent from order denying expungement of report of indicated child abuse is an appeal from agency decision requiring administrative action within 90 days. Report of indicated child abuse was supported by evidence. J. L. v. Department of Public Welfare, 575 A.2d 643, 645 (Pa. Cmwlth. 1990).

   This section is invalidated, and the general provisions of 1 Pa. Code §  35.241 (relating to application for rehearing or reconsideration) should apply to the time frame for response from the agency head. Strobhar v. Department of Public Welfare, 557 A.2d 440 (Pa. Cmwlth. 1989).

   This section is invalidated with regard to the ‘‘15 working day’’ period in which the Secretary is to act on reconsideration because the language of the section makes computation of timeliness nearly impossible, is inherently inconsistent and was designed to complement a previously invalidated corollary section. Strobhar v. Department of Public Welfare, 557 A.2d 440 (Pa. Cmwlth. 1989).

   Failure of the Department of Public Welfare to act within the time period specified in subsection (b)(1) (relating to procedures) does not render its subsequent actions illegal. Houtz v. Department of Public Welfare, 401 A.2d 388 (Pa. Cmwlth. 1979).

Cross References

   This section cited in 55 Pa. Code §  133.4 (relating to procedures); 55 Pa. Code §  141.41 (relating to policy); 55 Pa. Code §  141.56 (relating to deferred referral); 55 Pa. Code §  165.81 (relating to fair hearing); 55 Pa. Code §  227.24 (relating to procedures); 55 Pa. Code §  1181.54 (relating to payment conditions related to the recipient’s continued need for care); 55 Pa. Code §  3490.106 (relating to hearings and appeals proceedings for reports received by ChildLine prior to July 1, 1995); 55 Pa. Code §  3490.106a (relating to hearings and appeals proceedings for indicated reports received by ChildLine after June 30, 1995); and 55 Pa. Code §  3490.192 (relating to request for a hearing from a school employe for indicated reports of student abuse).



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