0130.015.00 NOTIFYING ELIGIBILITY UNITS OF ADVERSE ACTIONS

0130.015.05 Legal Basis

The United States Supreme Court decision on March 23, 1970 in the case of Goldberg vs. John Kelley et al ruled that claimants have a right to an adequate hearing before termination or reduction of benefits. The Supreme Court concluded the U.S. Constitution guarantees beneficiaries "due process" whenever benefits are denied, reduced or terminated. Due Process includes prior written notice of the adverse action mailed to the eligibility unit (EU) at least 10 days before the action is taken.

0130.015.10 Advance Notice of Adverse Action Required

An Adverse Action Notice is required prior to action to discontinue or reduce benefits and/or services unless the action meets an exception (see 0130.015.20 Exemptions to Advance Notice of Adverse Action) . The Adverse Action Notice gives EUs currently receiving benefits or services:

• Ten calendar days advance notice of action to discontinue or reduce benefits and/or services.

  NOTE: The ten calendar days begin with the day after the notice is generated. If the tenth day falls on a holiday, Saturday, or Sunday, the tenth day on the Notice of Adverse Action is the first business day following the holiday, Saturday, or Sunday.

• An opportunity to request a hearing prior to the action.
• An opportunity to request benefits to continue at the present level until the hearing decision is received.

0130.015.20 Exceptions to Advance Notice of Adverse Action

An Adverse Action Notice is not required in the following instances for:

• All programs
  • The FSD receives factual information confirming the death of all members of the EU.
  • Contact with another state verifies the EU is eligible and is or will receive benefits from the other state.
  • Voluntary written request for closings or reductions in program benefits by the EU
    • Accept a mailed written statement signed by the EU voluntarily requesting the discontinuation of benefits, or
    • Give the EU the opportunity to complete the Waiver of 10-day Advance Notice (IM-80A) form any time a change of circumstances is reported that requires a notice of reduction or discontinuation of assistance, and the EU chooses to have the change effective immediately.
• Child Care Subsidy
  • Child Care Subsidy eligibility period ends.
• Temporary Assistance and MO HealthNet
  • Admission of the EU into an institution where assistance may not be continued.
  • Mail returned by the Post Office indicating no known forwarding address and the current address or location of the EU is unknown. Staff shall document attempts to contact the customer to attempt to secure a valid mailing address prior to closing a case.

    NOTE: This does not apply to the Temporary Assistance program regarding mailings from Missouri Work Assistance providers. See section 0130.020.70.30 Missouri Work Assistance (MWA) Hearings for more information.

• Temporary Assistance
  • Removal of a child or children from an EU by judicial determination, when it does not result in a grant reduction.

    NOTE:  If the removal of a child or children results in the case closing, a Notice of Adverse Action is necessary, because the benefits to the caretaker and/or the payee are adversely affected.

• MO HealthNet
  • Transfers from one assistance program to another with no break in coverage, or resulting in increased benefits for the claimant 

    EXAMPLE: EU receiving MO HealthNet for the Aged, Blind, and Disabled Vendor care does not lose benefits when transferred to Supplemental Nursing Care as they continue to receive MO HealthNet benefits and will get the additional benefit of the cash grant.

  • The notice involves an adverse determination made with regard to the preadmission screening requirements of section 1919(e)(7) of the Act.

    EXAMPLE:  DA124 determination that is completed for a person entering a vendor facility.

  • An EU receiving vendor payments in a State Mental Hospital transfers to an NF or ICF-MR.
  • An EU, sixty-five years or over receiving NF or ICF-MR transfer to a State Mental Hospital.
  • When the EU is residing in a facility and the State terminates the facility's participation in the MO HealthNet program. (The EU's MO HealthNet eligibility continues. The EU will need to move to a participating facility to continue to receive benefits.)

0130.020.00 FAIR HEARINGS FOR THE FOOD STAMP, TEMPORARY ASSISTANCE, MISSOURI WORK ASSISTANCE, MO HEALTHNET FOR FAMILIES, CHILD CARE SUBSIDY, AND MO HEALTHNET FOR THE AGED, BLIND AND DISABLED PROGRAMS

0130.020.05 Legal Basis for a Fair Hearing

The United States Supreme Court decision on March 23, 1970 in the case of Goldberg vs. John Kelley et al ruled that claimants have a right to an adequate hearing before termination or reduction of benefits. The Supreme Court concluded the U.S. Constitution guarantees beneficiaries "due process" whenever benefits are denied, reduced or terminated. Due Process includes:

• Prior written notice of the adverse action mailed to the eligibility unit (EU) at least 10 days before the action is taken,
• Continued benefits pending a final decision,
• A fair hearing before an impartial decision maker, and
• A timely decision, measured from the date the complaint is first made.

The legal basis for:

• Food Stamp program appeals is Title 7 Code of Federal Regulations (CFR) §273.15 Fair hearings. The Family Support Division (FSD) shall provide a fair hearing to any household aggrieved by any action of the FSD which affects the participation of the household in the Food Stamp program.
• Temporary Assistance program appeals is the Social Security Act Title IV, Section 402.(a)(1)(B) Special Provisions and 42 United States Code (U.S.C) § 602 a.(1)(B)(iii).
• Federally-funded MO HealthNet program appeals is 42 CFR 431.200 et seq. Fair Hearings for Applicants and Beneficiaries.
• Blind Pension program appeals is RSMo 209.110.

Missouri Revised Statues provides authority for fair hearings for all Income Maintenance programs. RSMo §208.080 Appeal to director of the respective division, when a procedure provides a fair hearing to any applicant for or recipient of benefits aggrieved by any action of the Family Support Division (FSD) affecting the eligibility unit's (EU's) participation in programs administered by the FSD.

Missouri Code of State Regulations (CSR) outlines state hearings procedures at 13 CSR 40-2.160. 13 CSR 40-2.440 provides procedures for hearings related to Temporary Assistance screening, testing, and treatment for illegal use of controlled substances.

0130.020.10 Right to a Fair Hearing

The FSD provides an opportunity for a fair hearing, also known as an administrative hearing or review, to any EU who disagrees with any decision, action, or proposed action affecting the EU's participation. The purpose of a fair hearing is to give all EUs an opportunity for an impartial, objective review of actions taken by the FSD.

EXCEPTION: Applicants for Presumptive MO HealthNet Eligibility do not have the right to request a hearing for the denial of presumptive eligibility determined by a qualified entity. The EU has hearing rights, if they apply for regular MO HealthNet and the application is denied by the FSD.

0130.020.15 Notifying the EU of the Right to Request a Hearing

EUs must be informed of their right to a fair hearing at application, and anytime an action is taken by the FSD that affects the benefits or services they receive. Any time an EU expresses to FSD staff that the EU disagrees with a State agency action, and the issue cannot be resolved, FSD staff must remind the EU of the right to request a fair hearing.

At application, reapplication, and anytime a change in eligibility or benefits occurs the FSD informs the EU in writing of:

• The action being taken, including:
  • The new amount or type of benefit the EU will receive;
  • The month and year the change is effective if the EU does not request a hearing;
• The reason for the action and the specific regulation on which the decision is based.
• Fair hearing rights: 
  • How to request a fair hearing in writing or orally; in person, or by mail, fax or telephone.
  • The time allowed for requesting a fair hearing.
  • Who may present the EU's case; the EU may present their case or have a spokesperson such as legal counsel, a relative, or a friend present the case for them.
  • How to contact organizations available to provide free legal representation for a fair hearing.

0130.020.20 Requesting a Fair Hearing

If an EU contacts the FSD regarding an adverse action, staff should discuss the facts regarding the rejection, closing or reduction of benefits with the EU and try to resolve the issue at the first contact. When an EU disagrees with the FSD on their request for benefits, or amount, overpayment, delay or termination of benefits, an agreement is often reached through an explanation by the FSD staff of policies and actions taken. However, the EU may always request a fair hearing.

A request for hearing is any clear expression, either verbally or in writing, by the EU, the EU's authorized representative or legal representative that the EU chooses to appeal a FSD decision or action. Staff must not limit or interfere with the freedom of the EU to request a hearing. If it is unclear from the EU's request what action it wishes to appeal, FSD staff may request information from the household to clarify the issue.

RSMo 208.080 specifies "All appeal requests may initially be made orally or in any written form, but all such requests shall be transcribed on forms furnished by the division and signed by the aggrieved applicant or EU or his or her representative prior to the commencement of the hearing."

0130.020.20.05 Hearing Requests from non-English Speakers

If the EU making the request speaks a language other than English the FSD is required to provide interpreters who speak the appropriate language. The FSD must insure that the hearing procedures are verbally explained in that language.

0130.020.20.10 Reasons for Requesting a Fair Hearing

The EU may request a hearing if aggrieved by any FSD action, proposed action, delay or failure to act by the FSD in its administration of the IM or Food Stamp programs which affects participation in the programs. Examples of reasons an EU may request a hearing includes, but is not limited to, the following:

• The EU was denied the right to apply; 
• The FSD does not inform the EU of a decision on an application within a reasonable length of time;
• The EUs application was rejected;
• The EU's amount of benefits and/or services, including changes in level of care, was reduced or terminated;
• The EU requests an increase in benefits, and the request is denied;
• The EU's requests to add one or more individuals to their case is denied or not acted upon within the required time;
• The form of payment is changed to a protective payee, vendor, or two-party payment;
• The EU requests an increase in the spousal share upon application for vendor benefits by the institutionalized spouse, or the EU requests an increase in the monthly allotment to a community spouse or dependent;
• The EU's request for a hardship waiver from a transfer of asset penalty is denied;
• The EU's request for restoration of lost benefits is denied;
• The EU is subject to collection or recoupment of an overpayment; or
• The EU's request for a covered Medicaid service is denied.

0130.020.20.15 Time Limits for a Hearing Request

The FSD must receive the EU's request to appeal an action, decision or current level of benefits:

• Within ninety (90) calendar days from the date of the FSD action notice;
• Any time within a Food Stamp certification period if an EU disagrees with their current amount of benefits; or
• Within 90 days of the date of the denial of restored Food Stamp benefits and the benefits were lost less than a year before the date of the request for restoration.

  NOTE: An EU may request a fair hearing any time the EU disagrees with a decision, action or failure to act by the FSD, or the amount of benefits.

  • FSD staff must accept all hearing requests, and complete the Application for State Hearing (IM-87) forms.
  • The Administrative Hearings Unit (AHU) may reject or dismiss an appeal received outside the 90-day limit.

0130.020.20.20 Fair Hearing Request Date

The date the FSD receives the request in any of its offices during business hours is considered the fair hearing request date. If the hearing request is received by telephone message, fax, drop box, or other means after business hours at that location, the fair hearing request date is the next business day.

0130.020.20.25 Completing the Application for State Hearing (IM-87)

If the EU requests a hearing in person:

1. The EU member or representative completes the section "Completed by Claimant" including a statement of why the hearing is requested and signs the Application for State Hearing IM-87 form.
2. Staff receiving the hearing request completes remaining fields of the IM-87.
3. Staff immediately scans and indexes the IM-87 to the FSD Work Site Hearings Portal at FSDIM87@ip.sp.mo.gov .
4. Staff documents in the electronic record, information about the hearing request including the date the hearing request was received, who requested the hearing, the reason the hearing was requested, and the IM-87 was sent to the Hearings Portal.

If the EU requests a hearing by telephone or other verbal request, such as in-person when the EU refuses or is unable to complete the IM-87, staff receiving the hearing request:

1. Enters the EU's verbal statement about the reason for the appeal on the IM-87 form.
2. Notes the verbal request and the name of the EU member or representative who requested the hearing in the signature box on the IM-87.
3. Completes the IM-87.
4. Immediately scans and indexes the IM-87 to the FSD Work Site Hearings Portal at FSDIM87@ip.sp.mo.gov .
5. Comments in the electronic record information about the hearing request, including the date the hearing request was received, who requested the hearing, the reason the hearing was requested, and the IM-87 was sent to the Hearings Portal.

   NOTE: The completed IM-87 must be scanned to the Hearings Portal without the EU's signature. Staff should obtain the signature prior to the hearing.

If the EU requests a hearing in a written statement other than an IM-87, staff receiving the hearing request:

1. Completes the IM-87 using available information.
2. Notes the request was made in writing in the signature box.
3. Immediately scans and indexes the completed IM-87 and the written request for the hearing to the FSD Work Site Hearings Portal at FSDIM87@ip.sp.mo.gov .
4. Comments in the electronic system of record  about the hearing request, including the date the hearing request was received, who requested the hearing, the reason the hearing was requested, and the IM-87 was sent to the Hearings Portal.

   NOTE: The completed IM-87 must be scanned to the Hearings Portal without the EU's signature. Staff should obtain the signature prior to the hearing.

See the Forms Manual Volume II IM-87 Instructions for more information on completing the IM-87.

0130.020.20.30 EU Fair Hearing Requests For Denial of Medical Services

Fair hearing requests regarding denial of medical services for EUs eligible for MO HealthNet (such as denial of specific services) or issues involving premium payments are normally processed by the MO HealthNet Division. If these requests are received by the FSD, staff completes the IM-87 and forward to the MO HealthNet Division. FSD staff scans and indexes a copy of the IM-87 to the EU's file.  Requests are sent to FSD's Work Site Hearings Portal at FSDIM87@ip.sp.mo.gov .

0130.020.40 EU's Examination of Documents

The EU, and anyone representing them, has the right to examine the EU's case record. If the representative is not an attorney or authorized representative, the EU must sign a written statement to allow the individual to review information in the record. An attorney must provide an entry of appearance, representation agreement, or other documentation to show they are the attorney of record.

NOTE: Federal regulations at 7 CFR 271.2(c)(3) allows the FSD to withhold from an EU confidential Food Stamp case information, like the name of someone reporting fraud or the status of a criminal case. Any confidential information removed from the casefile may not be presented at the hearing and must not be made available to the hearing officer who will decide the issue.

An EU has the right to have FSD staff photocopy, free of charge, all documents the EU would like to introduce as an exhibit at the hearing.

The FSD must provide the EU and their representative copies of exhibits before the hearing and/or on the hearing date.

0130.020.50 EU Benefits Continued

To have benefits continued at the amount received prior to an adverse action the EU must:

• Request a fair hearing during the ten day adverse action period prior to the effective date of the change or closing. See section 0130.015.10 Advance Notice of Adverse Action Required .
• Remain eligible on all factors other than the issue in the fair hearing request.

EUs may specifically request that continued benefits not be issued or be discontinued pending a hearing decision.

REMINDER: If the hearing decision affirms the FSD action, the FSD will establish a claim for any benefits the EU was overpaid while waiting on the hearing decision. When the EU declines continuation of benefits in the original amount and the hearing decision is in the EU's favor, the FSD will correct the underpayment(s).

EU's benefits will continue at the amount authorized immediately before the adverse action, unless other factors that were not contested result in a benefit change.  Benefits do not continue past the expiration of the Food Stamp certification period.

Benefits may be reduced or terminated prior to receiving the hearing decision when:

• The certification period expires. An EU may reapply and be found eligible for a new period with benefits calculated as if the hearing wasn't pending.
• A mass change affecting the EU's eligibility for benefits occurs while the hearing is pending.
• During the hearing regarding MO HealthNet benefits, it is determined by the hearings officer that the sole issue is one of Federal or State law or policy.

0130.020.60 EU Reports Changes After Hearing Request

After a fair hearing request, staff must continue to act on the EU's reported changes (such as changes in household composition, address, shelter deductions, etc.) in a timely manner and correctly adjust benefits. The FSD will provide advance notice of adverse action if benefits are reduced or terminated for other reasons while the hearing decision is pending.  FSD staff are encouraged to enter a comment on EUMEMROL to indicate the reason a hearing has been requested so that no action is taken until the completion of the hearing.

No action directly relating to the issue of the hearing request can be taken until:

• The final hearing decision is made,
• The issue is resolved and the EU withdraws the hearing request or FSD rescinds (See Section 0130.020.70.15 EU Withdraws Hearing Request or 0130.020.70.10 FSD Rescinds the Action .), or
• The Food Stamp certification period expires.

0130.020.70 FSD Hearing Preparation

0130.020.70.05 FSD Reviews the Case when the Hearing Request is Received

At the time of a fair hearing request, the staff person receiving the hearing request:

• Reviews the case and determines if the contested action was caused by:
  • A misunderstanding,
  • An incomplete eligibility determination,
  • A misinterpretation of policy or procedure, or
  • Other error by the FSD.
• Confers with the supervisor or manager, who may contact the appropriate Program and Policy unit on the results of the case review when needed. 
• Immediately rescinds the action and corrects the case, when the FSD decision or action was incorrect. See section 0130.020.70.10 FSD Rescinds the Action .
• When possible, discusses the case with the EU and when the FSD decision or action was correct, explains the basis for the action to the EU. If the issue is resolved and the EU does not want to pursue their appeal, the EU may withdraw the hearing request. See Section 0130.020.70.15 EU Withdraws Hearing Request .
• Records the outcome of the case review and any actions taken in the electronic case record.

0130.020.70.10 FSD Rescinds the Action

If the FSD decision or action was incorrect, or when the case record is inadequate to substantiate the action, staff rescind from the hearing request by:

• Completing the FSD Action Rescinded (IM-90A ) form.
• Scanning and indexing the IM-90A to the FSD Work Site Hearing Portal at FSDIM87@ip.sp.mo.gov . The AHU receives a link to the IM-90A when it is scanned, indexed and assigned in the portal.
• Completing and mailing to the EU the FSD Action Withdrawn Participant Notification (IM-90B ) form.
• Scanning and indexing a copy of the IM-90B to the Virtual File Room.
• Commenting in the electronic record about the case review and why the FSD rescinded the action that had resulted in the hearing request.

0130.020.70.15 EU Withdraws Hearing Request

An EU may voluntarily withdraw their Application for State Hearing. The withdrawal must be made in writing.

• The EU withdraws by signing the Withdrawal for Request for Hearing (IM-90 ) form or equivalent.
• Staff scan and index the IM-90 to the FSD Work Site Hearing Portal at FSDIM87@ip.sp.mo.gov .
• Staff comment in the electronic record about the case review, the discussion with the EU and why the EU withdrew the hearing request.

0130.020.70.20 Pre-hearing Conference

A pre-hearing conference is a meeting between an EU and FSD representatives to:

• Explain the proposed action or inaction.
• Permit the EU and any EU representative to present information about the issue that resulted in the hearing request, and to request information from the FSD.
• Resolve the issue.

Staff are required to offer the EU a pre-hearing conference either orally or in writing. Staff advises the EU:

• The EU has the choice to participate in a pre-hearing conference.
• The pre-hearing conference doesn't delay or replace the hearing.
• The pre-hearing conference may lead to the informal resolution of the dispute.
• A pre-hearing conference does not affect the right to a hearing or the time limit for completing a hearing.
• A hearing will occur without a pre-hearing conference.

The FSD staff and the EU member or their representative attends the pre-hearing conference. The staff responsible for the action may attend the pre-hearing conference. The conference is normally conducted by telephone.

Staff schedule and hold the pre-hearing conference as soon as possible and attempt to resolve the fair hearing issue. Staff should ask the EU if they have additional information they want to provide. If a pre-hearing conference is held and the issue is not resolved, ensure that the EU understands the fair hearing will be held at a later date.

EXAMPLE: A pre-hearing conference is held because an EU is rejected based on a decision by the Medical Review Team (MRT) that an individual is not disabled. At the pre-hearing conference the EU states they have additional medical information. Staff explain to the EU, if they provide the information, it can be sent to the MRT for a new determination.  Staff advise the EU they can withdraw the hearing request, and retain the right to request a hearing later if the new MRT decision is not favorable. Staff allow the EU additional time to provide the information.

Staff confer with the supervisor or manager, who may contact the appropriate Program and Policy unit on the issue and results of the pre-hearing conference, if needed.  Staff record the content and outcome of the pre-hearing conference in the electronic case record.

NOTE: When a hearing is requested, it must be held unless the:

• EU voluntarily withdraws the hearing request in writing. See section 0130.020.70.15 EU Withdraws Hearing Request . OR
• DLS accepts FSD's rescission of an action. See section 0130.020.70.10 FSD Rescinds the Action .

0130.020.70.25 FSD Witness

The FSD must designate a staff member to represent the FSD in the fair hearing. This staff person may be referred to as the FSD or agency witness. In most fair hearings, the FSD witness will be a member of the FSD Hearings Unit. The FSD Hearings unit does not act as the FSD witness when:

• The hearing request is for a Gateway case, MO HealthNet services, or a LIHEAP case.

NOTE: Texas County Spend Down Unit does the hearings related to bills not qualifying to meet the spend down amount.

The FSD witness:

• May confer with the EU and/or the EU's representative(s) to attempt to resolve the issue prior to the hearing.
• May discuss the issue with the supervisor, manager, worker who took the action, or the appropriate Program and Policy unit, and anyone else who may be able to assist in the preparation of the case for hearing.
• Must not discuss the case with the hearings officer who will preside over the hearing.

0130.020.70.25.05 Determining Validity of Action

When preparing for the hearing, the FSD witness:

• Determines the validity of the action based on policy; information in the record or provided by collaterals; and additional information provided by the EU, if any.
• Requests additional information from the EU if needed to determine the validity of the action or to correct the case.
• Rescinds from the hearing and notifies the AHU immediately, if the action was not valid, the decision was incorrect, or the case record does not substantiate the action taken. See Section 0130.020.70.10 FSD Rescinds the Action .

The FSD witness may continue to work with an EU to resolve the issue prior to the hearing.  If the issue is resolved, the EU can withdraw the hearing request any time prior to the start of the official hearing.  The EU must have the action explained to them and decide it is in the EU's best interest to withdraw their request for a hearing. See Section 0130.020.70.15 EU Withdraws Hearing Request .

0130.020.70.25.10 Preparing Testimony and Exhibits

The FSD witness:

• Determines the issues or actions to be addressed in the hearing.
• Prepares testimony and exhibits to present during the hearing from the case record and other sources such as the policy manual or regulations supporting the action and must:
  • Be familiar with the policies and procedures that relate to the case.
  • Define the issues resulting in the hearing request.
  • Review the facts and become familiar with the case as a whole.
  • Document all eligibility requirements.
  • Ensure the case record is complete and all necessary documents are present and in chronological order.
• Must be prepared to establish by testimony in the hearing record:
  • The witness is qualified to represent the FSD in the hearing.
  • The case record is a FSD business record.
  • The FSD witness and any other witness supporting the FSD has information pertaining to the case.
  • Exhibits offered as documentary evidence are authentic copies of the forms or documents in the case record.
  • The authority to access information and/or how the FSD learned the information.
  • A summary of the case, the action taken, and evidence to support the action including:
  • An  explanation of budgeting, if applicable,
  • The legal reference and policy supporting the action, and
  • A brief explanation of the evidence supporting the action the FSD is requesting to submit as hearing exhibits.
  • The reason for the appeal.

The FSD witness's testimony normally follows a chronological sequence. Testimony should:

• Document events pertaining to the issue being appealed with the date, place, and identity of any person involved.
• Include dates of phone calls, name of the person taking the calls, dates of letters, etc., and
• Information and material relevant to the issue or action resulting in the hearing request up to the time of the appeal.

The FSD witness organizes the material for presentation of the case and prepares exhibits to follow the order of events leading to the action. Exhibits should:

• Include all documents, screen prints, or forms from the case record used to make the decision on the case action which resulted in the hearing.
• Be numbered individually in the order the exhibits will be presented and include the number of pages per exhibit.

Examples of documents to review to determine the validity of the action, and to submit as hearing exhibits include:

• Request for Application.
  • MAGI applications may be found in MEDES as a PDF or a paper application scanned into the Virtual File Room (VFR).
• Interview Summary (FA102), if applicable.
• FAMIS Budget summary.
• FAMIS Income screens.
• FAMIS Expense screens.
• MEDES financial information can be found in the following places:
  • Income evidence is found on the Application Case (AC) and the Integrated Case (IC)
  • Expense evidence is found on the AC and the IC
  • Budget summaries are found on the Product Delivery Case (PDC), determinations sub-tab, click on appropriate coverage period, click on income.
• Documentation of income and expenses.
• FAMIS Employment Assessment (EMPLOY/FMMS) screen, if applicable.
• FAMIS Sanction/Disqualification (SANDISQ/FMAM) screen, if applicable.
• MEDES Sanction/Disqualification evidence can be found in the IC with evidence name: "MO Medical Support Non-Cooperation"
• FAMIS Disabled (FMMX) screen with a copy of the Social Information Summary (IM-61), Disability Questionnaire (IM-61B), and all medical records that were sent to the Medical Review Team (MRT), if applicable.
• MEDES disability evidence can be found on the AC and IC, if applicable.
• All pertinent FAMIS and/or MEDES comment screens.
• Original Action Notice (FA-150) that states the eligibility dates for Child Care Subsidy
• Any other verification supporting the action.
• The document or documents, which notified the EU of the FSD's decision— Adverse Action Notice and/or Claimant Action Notice associated with the action in question.
• The FSD policy manual(s) and memorandums, state regulations, and/or federal regulations that apply to the action.

0130.020.70.25.15 Medical Review Team (MRT) Decisions as Evidence

The FSD determines eligibility based on disability from MRT's decisions. The FSD witness may include information about the MRT decision in testimony. MRT's disability determinations are based upon medical information furnished to them by examining physicians. The examining physicians' reports are admissible as evidence.

0130.020.70.25.20 FSD Provides Exhibits to the AHU and the EU

As soon as possible but within 10 calendar days of the date of the Application for State Hearing, the FSD witness sends the exhibits documenting the FSD action to:

• The AHU; and
• The EU and their representative, if any.

NOTE: Federal regulations at 7 CFR 271.2(c)(3) allow the FSD to withhold from the EU, confidential Food Stamp case information, like the name of someone reporting fraud or the status of a criminal case. Confidential information will not be provided and will be removed from the case file before allowing the client or client's representative to review the case file. Any confidential information removed from the casefile may not be presented at the hearing and may not be made available to the hearing officer who will decide the issue.

0130.020.70.25.25 Other Witnesses for the FSD

Witnesses may be used to support the FSD's action or to verify a sequence of events or facts. The FSD witness must contact other individuals as soon as it is known they are needed as a witness in the hearing, and assist them in preparing for the hearing. The FSD witness may request the Hearings Office to subpoena other witnesses, if necessary.

The FSD witness must arrange the introduction of such witnesses during the hearing to assure the continuity of the FSD's presentation.

0130.020.70.25.30 Request for Legal Representation

When an EU will be represented by an attorney in a hearing, the FSD witness informs the DLS Assistant Special Counsel for Benefits assigned to the FSD. The DLS Assistant Special Counsel decides if DLS should represent the FSD in the hearing.

0130.020.70.30 Missouri Work Assistance (MWA) Hearings

When an EU requests a hearing based on non-cooperation with a work-related activity, or the Temporary Assistance case was closed because mail sent by MWA was returned by the Post Office with no forwarding address, the AHU emails a copy of the IM-87, and a copy of the Notice of Scheduled Hearing, which includes the date, time, and location of the hearing to the MWA Unit. An MWA program development specialist (PDS) immediately reviews the MWA System and determines if the sanction alert or the unable to locate alert was sent according to MWA policy.

When the sanction or unable to locate alert was sent in error:

• The MWA PDS:
  • Sends an email to the MWA service provider and the FSD local staff:
    • Stating the sanction or unable to locate alert was sent in error and the reason for the error; and
    • Instructing local FSD staff to rescind from the hearing.
  • Documents the action in case notes in the MWA System.
• The MWA provider must begin re-engagement efforts immediately.

When the sanction alert or unable to locate alert was sent correctly:

• The MWA provider and local FSD staff receives an email stating the alert was sent according to policy and gives the date, time, and place of the hearing.
• If only the IM-87 was received from the AHU by the MWA PDS, an email stating policy was followed is sent. When the Notice of Scheduled Hearing is received from the AHU, another email is sent giving the date, time and location of the hearing;
• The MWA provider must immediately notify the appropriate case manager who is required to participate in the hearing when scheduled; and
• The MWA case manager must be prepared to provide relevant testimony and/or evidence relating to the reason for the sanction, or reason unable to locate.

The MWA case manager must provide evidence proving the sanction recommendation or the case closing due to unable to locate to the FSD within three (3) business days of notification of the hearing.

Evidence includes:

• Call-in letter(s);
• All returned letter(s), if appropriate;
• The Individual Employment Plan (IEP);
• Free-form letters;
• Locate attempts to contact the customer (ex: by phone);
• Conciliation attempts;
• Case notes;
• Evidence or notes on telephone calls; and
• Any other documentary evidence submitted in hard copy form to support the recommendation, if necessary.

MWA staff participating in the hearing must keep one copy of the relevant evidence supporting the request to sanction or close the TA case and supply copies prior to the hearing to the:

1. TA EU;
2. Hearing officer; and
3. FSD agency witness.

The appropriate MWA case manager (or MWA provider supervisory/management staff familiar with the circumstances regarding the EU's non-compliance) must participate in the hearing.

NOTE:  The MWA providers participate in the hearing via telephone only when the required evidence has been provided to the appropriate individuals prior to the hearing. If the evidence has not been provided prior to the hearing the MWA case manager or other MWA staff must attend the hearing in person in the FSD office in the EU's county of residence.

The FSD witness will introduce the MWA witness in the hearing. The MWA witnesses participating in the hearing must verbally qualify themselves and their evidence prior to providing testimony. The suggested language to qualify the MWA witness during the hearing is:

"My name is (full name). I am employed by (name of MWA provider) in the capacity of (working title). I have been employed by (name of MWA provider) for (number of months or years). Our office provides case management services to Temporary Assistance EUs through the Missouri Work Assistance program.

I have with me at this hearing the official Missouri Work Assistance case record of (full name of TA EU). It is the policy of (name of MWA provider) to maintain a case record on all MWA participants referred to our agency for case management services.

It is the regular course of business for case managers to make entries in the record at or near the time the EU is seen for services or information about the EU is obtained. Entries in the record for (full name of TA EU) are in the usual form and I will be using information contained in the case record in my testimony."

0130.020.80 Ex Parte Communication is Prohibited

Ex parte communication is any communication between FSD staff and DLS hearing officers that does not include the EU and/or the EU's representative. FSD staff is prohibited from communicating directly with a hearing officer by email, telephone, or any other written or verbal form on any case before or after a hearing.

Following are examples of prohibited ex parte communication.

EXAMPLE: Sending copies of a comment screen, medical evaluation, or client exhibits directly to a hearing officer's personal email account is prohibited ex parte communication. Copies of these documents must be submitted as hearing exhibits to the appropriate AHU email address.

Any communication must be copied in full to all parties involved in the hearing. Copies of all exhibits the FSD will use in a hearing must be given to the EU; the EU's representative, if any; and the AHU.

During the course of preparing for a hearing, FSD staff may call the AHU assigned to the EU's county of residence and speak with support staff regarding procedural questions about hearings.

FSD staff must never send legal or policy questions to a hearings officer or to the AHU. FSD staff submit any legal or policy questions through supervisory channels to the appropriate Program and Policy Unit in Jefferson City.

Occasionally while a hearing is pending, the EU will contact the FSD to relay information to the hearing officer or to ask the hearing officer a question. Staff must be courteous to the EU, but do not contact the hearing officer on an EU's behalf. Inform the EU to contact the AHU telephone number on the Notice of Scheduled Hearing.

NOTE: Do not e-mail the hearing officer directly to convey information or to ask the hearing officer a question on behalf of an EU; because, doing so constitutes ex parte communication.

If the EU brings documents to the FSD to send for a hearing, it is appropriate to fax or scan and email copies of the documents to the AHU and to the FSD witness. Do not send documents directly to the hearing officer.

When additional information is received for a hearing that has been held open, email the additional exhibits to the appropriate AHU , not directly to the hearing officer.

0130.020.90  Division of Legal Services (DLS) Administrative Hearings Unit (AHU) Fair Hearings

EUs dissatisfied with a decision or action of the FSD may appeal to the FSD Director. The FSD Director has designated the DLS AHU to conduct fair hearings on the Director's behalf.

Food Stamp Program Administrative Disqualification Hearings (ADH) are also conducted by the AHU, but only at FSD request. Refer to the Food Stamp Manual section 1145.010.25 Administrative Disqualification Hearing Procedure for more information on the ADH process.

0130.020.90.05 Hearings Officers

Hearings are conducted by an impartial official, the DLS hearings officer, who:

• Is a duly appointed and qualified agent of the DLS,
• Is familiar with relevant federal and state policies and procedures,
• Wasn't involved in the action being contested, and
• Doesn't have a personal stake or involvement in the case.

The hearing officers' powers and duties are to:

• Subpoena witnesses, when requested to do so.
• Ensure the EU has had an opportunity to review the documents to be used by the FSD in the presentation of the case.
• Administer oaths.
• Regulate the hearing's conduct and course consistent with due process to ensure an orderly hearing.
• Ensure all relevant issues are considered.
• Request, receive and place in the record all evidence necessary to decide the issue.
• Deny a hearing request.
• Declare a hearing withdrawn.
• Rule on the FSD's rescission.
• Rule on good cause for a client's failure to appear at a scheduled hearing.
• Rule on requested continuances of hearings and indicate a date and time at which the hearing will reconvene.
• Adjourn the hearing and close the hearing record.
• Render a decision on each relevant issue addressed at the hearing.
• Order, when necessary, an independent medical assessment or professional evaluation to be paid by the FSD.
• Provide a hearing record and recommendation for a final decision by the FSD director.
• Notify in writing the EU and the FSD of the decision.

0130.020.90.10 AHU Sends EU and FSD Notice of Scheduled Hearing

The AHU schedules a hearing upon receipt of the Application for State Hearing (IM-87). At least 10 days prior to the hearing, the AHU sends the EU and any representative a Notice of Scheduled Hearing to allow the EU time to prepare for the hearing.

The notice includes:

• The name of the EU's head of household,
• The case number,
• The hearing number,
• The exact date, time and place of the hearing,
• A statement that the hearings officer will dismiss the request if the EU or any representative fails to appear without good cause,
• A statement describing the hearing procedures and other information explaining the hearing process to help the EU make a better case,
• The name, address, and phone number to notify if the EU can't attend, and
• A statement that the EU and any representative may examine the case record prior to the hearing.

0130.020.90.15 Rescheduling a Hearing

Only the AHU may reschedule a hearing. The EU must contact the AHU directly to ask for a hearing to be re-scheduled.

The AHU will reschedule a hearing for no later than 30 days following the initial hearing date, if it finds that the EU has good cause for inability to participate in the hearing.

0130.020.90.20 Withdrawal of Hearing Request

The EU or their representative may withdraw a hearing request. See Section 0130.020.70.15 EU Withdraws Hearing Request . Only the hearings officer has the authority to grant or deny a request to withdraw an Application for State Hearing.

0130.020.90.25 Hearing Requests Dismissed or Denied

The hearings officer may dismiss a request for hearing if:

• The request is not timely.
• The FSD rescinds the action that resulted in the request. See section 0130.020.70.10 FSD Rescinds the Action .
• The EU fails to appear for the hearing without good cause.
• A hearing decision was previously rendered on the same issue(s) involving the same month(s) of benefits;
• The issues involve matters where the AHU has no jurisdiction, such as complaints against an FSD staff person, the FSD's operating policies and civil rights complaints. 
• The issues are under another agency's jurisdiction.

When a hearing request is dismissed, the hearings office will notify the EU and the FSD. When the notice of dismissal is received by the FSD, if benefit were continued, staff takes the proposed action as indicated on the Notice of Adverse Action and records information regarding the case action.

0130.020.90.30 Hearing Procedures

Hearings will be held by telephone conference between the hearing officer, the FSD witness, the EU and their representative, and the interpretive service, when needed. Refer to section 0130.020.20.05 Hearing Requests from non-English Speakers .

Customers must be allowed to have their hearing held in their county of residence.  Regardless of location, a private room must be available to the customer for the hearing.

The EU may have other individuals such as friends or relatives attend the hearing. However, the hearing officer has the authority to limit the number of persons attending who are not participating in the hearing.

The hearing officer:

• Starts the electronic recording of the hearing to ensure a complete hearing record.
• Explains the purpose of the hearing.
• Explains the ground rules of the hearing.
• Informs the EU of their rights in the hearing process.  The client and his or her representative have the right to:
  1. Examine all documents to be used at the hearing, including exhibits, allowing sufficient time for preparation of the case;
  2. Represent himself or herself at the hearing, or be represented by an attorney or any other person who may be helpful in the presentation of the case;
  3. Present witnesses and documents pertinent to the case;
  4. Establish facts and advance arguments pertinent to the case without undue interference; and
  5. Question or refute testimony or evidence, including the opportunity to confront and cross-examine adverse witnesses.
• Reviews the reason (s) for the case action.
• Swears in the witnesses.
• Conducts the hearing in an orderly manner to impartially obtain full disclosure and discussion of facts and evidence essential to the hearing.

The FSD witness:

• Testifies and presents information about the case action,
• Explains relevant regulations, policies, and guidelines, and
• Requests to introduce as exhibits documentary evidence substantiating the FSD's decision and action taken on the case.
• Does not cross examine, enter objections or conduct direct examination during the hearing.

Following the FSD witness presentation, the hearing officer will allow for the EU or the EU's representative to cross examine, challenge and object to evidence submitted from the FSD. Then, the EU or representative will present information about the case and any documentary evidence.

The FSD witness may:

• Examine the EU's evidence,
• Provide rebuttal testimony only upon request of the hearing officer, and
• Request a continuance if new information is introduced which may affect the eligibility determination.

The hearing officer may:

• Adjourn the hearing,
• Request additional information and leave the hearing record open, or
• Allow a continuance of the hearing if one has been requested.

0130.020.90.35 Continuance – New Information Presented by the EU

The EU or their representative may present new information at the time of the hearing and this information may remove the basis for the decision being appealed, and/or indicate a change in circumstances that affects the decision being appealed.  The FSD witness evaluates the evidence presented, makes a decision regarding the direct effect upon the hearing issue, and may request a continuance.

The Hearing Officer grants the continuance, if appropriate, when the new information will require a re-examination of the case action.

When the verification of the new information is received staff:

• Begins a reinvestigation of the EU's circumstances;
• Determines the EU's continued eligibility;
• Discusses with the EU either benefits will continue or the EU is still ineligible;
• Contacts the EU to discuss hearing rights so the EU can either submit a written request for voluntary withdrawal or continue the hearing process; and
• Notifies the hearing officer of the EU's decision.

0130.020.90.40 Time Limits for the Hearing Decision

For the Food Stamp program, AHU must conduct the hearing and issue a decision promptly, allowing FSD to complete the final action within 60 days of the date of the fair hearing request. The only exception to this timeframe is for those cases in which the EU has requested a continuance, in accordance with the provisions of federal law.

The time frame for implementing hearing decisions is the result of a United States District Court order from April 10, 1978 in the case of Lambus v. Walsh.

"… [It] is hereby

ORDERED, ADJUDGED, AND DECREED that defendants' failure to fully implement fair hearing decisions by issuance of food stamps or repayment of monies overpaid, violates rights secured to plaintiff Lambus and members of the class by the Food Stamp Act, 7 U.S.C. § 2011, et seq., and regulations promulgated thereunder, 7 C.F.R. § 271.1, et seq.; and it is further

ORDERED, ADJUDGED, AND DECREED that defendants, their successors, agents, and all those in active concert with them be, and they are hereby, enjoined forever and permanently from failing to provide prompt, definitive and final administrative action, including the issuance of food stamps or repayment of money, when the hearing decision is favorable, within sixty (60) days from the date that the fair hearing is requested, except in those cases in which the claimant has requested a delay or has failed to appear for a scheduled fair hearing, in accordance with the provisions of federal law; and it is further

ORDERED that within sixty (60) days of the date of this Order, and every 60 days thereafter, defendants shall submit to this Court and to counsel for plaintiffs the following information for each individual who requests a fair hearing: the individual's name and address, the date of the request for the hearing, the date of the hearing decision, and the date on which the decision is implemented. It is further

ORDERED that at any time after three (3) years from this date, upon motion of a party or upon the Court's own motion, the Court may terminate the reporting requirements imposed herein."

For MO HealthNet programs, AHU must conduct the hearing and issue a decision promptly, allowing FSD to ordinarily complete the final action within 90 days of the date of the fair hearing request per 42 CFR 431.244(f)(ii).

0130.020.90.45 Hearings Conducted In Person

Fair hearings are normally conducted on the telephone by conference call between the parties. The DLS will allow an in-person hearing only when the EU requests it and has good cause as determined by the AHU.

0130.020.90.50 Group Hearings

Group hearings may be held by the AHU in response to several individual requests, provided there is one common issue of State or federal law or policy, or changes in State or federal law. In group hearings, all policies and procedures governing hearings must be followed. Each individual EU shall be permitted to present their own case or have the case presented by a representative.

0130.020.90.55 Fair Hearing Decision from the AHU

After the hearing is adjourned, the Hearing Officer will:

• Impartially examine facts and evidence presented during the hearing.
• Decide if the FSD action or decision agrees with FSD policy, procedures, and State laws.
• Prepare the decision and order.
• Notify the participants of the hearing decision and the appeal process.

0130.020.90.60 Decision and Order

The Decision and Order is based on the hearing record. It contains:

• Introduction and appearances,
• A statement of the issue involved,
• The facts presented in the hearing and a summary of the evidence,
• The conclusions or findings of fact,
• Applicable law rule, regulation or manual reference, and
• The order.

After the Decision and Order is signed, the AHU will mail a copy to the EU, their representative, and the FSD.  The FSD must follow a Decision and Order for a particular case. The hearing officer does not have the authority or the responsibility to establish program policy or procedure; the hearing decision applies only to the EU's case. 

The AHU hearing record for a Decision and Order consists of:

• Verbatim transcript or the hearings officer's recording of testimony, or
• An official report containing the substance of what transpired at the hearing, and
• All papers, requests and exhibits filed in the proceeding.

These records are available for copying and inspection by the EU or any representative at any reasonable time. All hearing records and decisions are available for public inspection and copying, so long as the EU's identity is safeguarded.

0130.020.100 FSD Action on the Decision and Order

0130.020.100.05 Decision and Order Favorable to the EU (the FSD was Reversed)

If the decision is favorable to the EU, and the original action was a:

• Denial - FSD implements the Decision and Order within 60 days of the hearing request, but not later than 10 calendar days after receiving the hearing decision.
• Reduction and benefits were continued – FSD has already taken the action to implement the Decision and Order. 
• Reduction, and benefits were not continued - FSD implements the Decision and Order within 60 days of the hearing request, but not later than 10 calendar days after receiving the hearing decision.   Claims are established when warranted.

Staff who conducted the hearing documents the hearing Decision and Order and action taken by entering comments in the electronic case record.  Staff scans and indexes the hearing decision to the Virtual File Room.

For Food Stamp hearings complete the Agency Representative Food Stamp Hearing Control Log (IM-89) and scan it to ColeFSPolicy@dss.mo.gov .

0130.020.100.10 Reversals of MO HealthNet Eligibility

If the case involves MO HealthNet eligibility that was incorrectly closed or denied, the Decision or Order will contain the following statements:  "In addition, Claimant may be eligible for reimbursement of paid MO HealthNet covered medical services provided from the date the case was rejected or closed to the date this Decision was signed.  Agency is instructed to explore eligibility for such reimbursement with Claimant."

To explore EU reimbursement of paid medical services, when it is determined by a hearing decision (including an amended hearing decision), or a FSD witness or supervisory decision that MO HealthNet benefits were incorrectly denied: 

• Complete Section A of the Request for Recipient Medicaid Reimbursement (IM-64) form indicating the period of MO HealthNet eligibility.
• Send the EU a letter with a copy of the IM-64 requesting they provide information and sign in Section A, and return the form within ten days. If the IM-64 is not returned, the FSD takes no further action.
• If the EU responds with a "NO" to the question of Section A IM-64, send the form to the MO HealthNet Division.  This completes the EU reimbursement process.
• If the EU has made payment for medical services during the dates indicated in Section A, complete Section B of the IM-64.
• If the FSD response in Section B is "NO", send the IM-64 to the MO HealthNet Division.  This completes the EU reimbursement process.
• If the EU is determined eligible (Section B is "YES") for the period in Section A, complete Section C and submit the form to the MO HealthNet Division.
• The MO HealthNet Division contacts the EU and provides additional procedures for obtaining reimbursement.
• The MO HealthNet Division notifies the FSD by a copy of the EU letter if the request for EU MO HealthNet reimbursement is denied.

0130.020.100.15 Decision and Order Not favorable to the EU (the FSD was Affirmed)

If the decision is favorable to the FSD, and the original action was a:

• Denial – the FSD takes no action to implement the Decision and Order. 
• Reduction or discontinuance and benefits were continued – the FSD takes action on the Decision and Order to reduce or discontinue benefits within 60 days of the hearing request, but not later than 10 calendar days after receiving the hearing decision.  The FSD witness may need to complete a Claim Referral.
• Reduction, and benefits weren't continued – the FSD takes no action to implement the Decision and Order. 

The FSD witness documents the hearing Decision and Order and action taken by entering comments in the electronic case record.  Staff scans and indexes the hearing decision to the Virtual File Room.

0130.020.100.20 Hearing Overturns Quality Control Decision

If a hearing decision is received on the same case action that caused a Quality Control error, staff review the decision to determine if the hearing decision reverses the Quality Control decision.

If the Quality Control decision on a MO HealthNet case is reversed, staff notify the Quality Control Unit Manager and send a copy to the Income Maintenance Deputy Director. The Quality Control Unit manager notifies Centers for Medicare & Medicaid Services (CMS) in writing and requests that the findings be changed. The CMS will change findings when it is determined the Quality Control decision is reversed by the hearing. 

0130.020.100.30 Claims Due to Hearing Decision

Staff establish a claim for any overpayments caused by benefits being continued pending the hearing decision.

0130.020.110 EU has the Right to Judicial Appeal

An EU dissatisfied with a hearing decision may appeal to the Circuit Court of their residence county. The EU begins the appeal process by contacting the AHU and requesting the affidavit for appeal. The affidavit for appeal must be notarized and filed with the AHU within ninety (90) days of the date of the hearing decision.

The EU appeal for review to the Circuit Clerk must include:

• The issue being appealed, and
• How the EU is aggrieved by the decision, and
• The request for relief the EU desires.

The FSD is not required to assist the EU in preparing for the judicial appeal.

When the affidavit for appeal has been properly executed and returned to the DLS Office of General Counsel, they are certified along with a transcript of the hearing proceedings and sent to the Circuit Court of the county in which the EU resides.  No bond or docket fee is required. The Circuit Court tries the case on the record of the proceedings. 

The Circuit Court's decision is based on whether the EU was given a fair hearing and whether the decision was arbitrary or unreasonable as a matter of law. If the decision is favorable to the EU, the Court will remand the proceedings for re-determination of the issues to the Director of FSD.