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.
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:
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 Adverse Action Notice is not required in the following instances for:
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.
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.
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.
EXAMPLE: DA124 determination that is completed for a person entering a vendor facility.
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:
The legal basis for:
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.
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.
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:
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."
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.
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 FSD must receive the EU's request to appeal an action, decision or current level of benefits:
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.
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.
If the EU requests a hearing in person:
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:
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:
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.
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 .
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.
To have benefits continued at the amount received prior to an adverse action the EU must:
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:
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:
At the time of a fair hearing request, the staff person receiving the hearing request:
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:
An EU may voluntarily withdraw their Application for State Hearing. The withdrawal must be made in writing.
A pre-hearing conference is a meeting between an EU and FSD representatives to:
Staff are required to offer the EU a pre-hearing conference either orally or in writing. Staff advises the EU:
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:
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:
NOTE: Texas County Spend Down Unit does the hearings related to bills not qualifying to meet the spend down amount.
The FSD witness:
When preparing for the hearing, the FSD witness:
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 .
The FSD witness:
The FSD witness's testimony normally follows a chronological sequence. Testimony should:
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:
Examples of documents to review to determine the validity of the action, and to submit as hearing exhibits include:
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.
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:
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.
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.
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.
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:
When the sanction alert or unable to locate alert was sent correctly:
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.
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:
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."
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.
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.
Hearings are conducted by an impartial official, the DLS hearings officer, who:
The hearing officers' powers and duties are to:
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:
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.
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.
The hearings officer may dismiss a request for hearing if:
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.
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:
The FSD witness:
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:
The hearing officer may:
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:
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).
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.
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.
After the hearing is adjourned, the Hearing Officer will:
The Decision and Order is based on the hearing record. It contains:
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:
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.
If the decision is favorable to the EU, and the original action was a:
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 .
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:
If the decision is favorable to the FSD, and the original action was a:
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.
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.
Staff establish a claim for any overpayments caused by benefits being continued pending the hearing decision.
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 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.