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COMMENT DUE DATE:  

March 20, 2014

DATE: 

February 11, 2014

Travis Smith, Legal Services (405) 521-3638

Dena Thayer, OIRP Programs Administrator (405) 521-4326

RE:  

APA WF 13-03

It is very important that you provide your comments regarding the DRAFT COPY of policy by the comment due date. Comments are directed to *STO.LegalServices.Policy@okdhs.org

The proposed policy is  Permanent .  This proposal is subject to the Administrative Procedures Act

SUBJECT:

Subchapter 5. Fair Hearings

Part 7. Assistance Programs

OAC 340:2-5-60 through 340:2-5-67 [AMENDED]

OAC 340:2-5-69 through 340:2-5-76 [AMENDED]

OAC 340:2-5-78 [AMENDED]

OAC 340:2-5-80 [AMENDED]

OAC 340:2-5-81 [NEW]

(Reference WF 13-03)

SUMMARY:The proposed amendments to Chapter 2 Subchapter 5 amend the rules to:(1) improve the fair hearing process; (2) conform to statutory amendments; (3) update program name changes; and (4) add rules designed to better insure clients' rights in the hearing process.

OAC 340:2-5, Part 7:throughout, Food Stamps is changed to Supplemental Nutrition Assistance Program (SNAP); and Child Care Services is changed to Subsidized Child Care.

OAC 340:2-5-61 is amended to: (1) add grounds to request a hearing for Subsidized Child Care; (2) change the grounds for Medicaid appeals to conform to the Oklahoma Health Care Authority (OHCA) and DHS Interagency Agreement; and (3) allow DHS to grant a hearing for a reason not specifically set forth when due process requires.

OAC 340:2-5-62 is amended to:(1) conform to Section 168 of Title 56 of the Oklahoma Statutes (56 O.S. §168);(2) allow DHS to appeal a hearing decision; (3) enlarge the pool of DHS employees the DHS Appeals Unit supervisor may designate as administrative hearing officers(AHO);and (4) revise language regarding the Appeals Committee members.

OAC 340:2-5-63 is amended to add:(1) a second day for mailing when calculating if a hearing request is made timely; and (2) language regarding determination ofdelivery date when made by United Parcel Service, Inc. (UPS), Fed Ex, or a similar service.

OAC 340:2-5-64 is amended to:(1) add authorization for hearing requests to be made by email; and (2) re-state the requirement that, except for SNAP payments, a written hearing request must be received within 30 days of receipt of the notice.

OAC 340:2-5-65 is amended to clarify:(1) that only appeals of medical decisions made by DHS are heard by the DHS appeals unit; and (2) when the hearing summary will be received by the client after the hearing request.

OAC 340:2-5-67 is amended to remove language limiting telephone hearings to out-of-state residents.

OAC 340:2-5-69 is amended to change the delivery date of the hearing summary from immediately after receipt of notice of hearing to five business days prior to hearing.

OAC 340:2-5-73 is amended to: (1) specifically authorize the assigned AHO to decide whether to hold the hearing in-person or on the phone; and (2) add language to authorize and set forth procedures for a pre-hearing conference to be held before the hearing date.

OAC 340:2-5-74 is amended to consider a printed copy of information stored electronically as an original document.

OAC 340:2-5-76 is amended to:(1) delete language regarding members of the Appeals Committee that duplicates a portion of OAC 340:2-5-62; (2) delete obsolete language regarding the Appeals Committee process; and (3) add two options for the type of decision the Appeals Committee may issue.

OAC 340:2-5-80 is amended to conform to amendments to 56 O.S. § 168 by:(1) adding language authorizing the Director of Human Services to designate a DHS employee to issue decisions on hearing decision appeals; and (2) authorizing DHS to appeal a hearing decision.

OAC 340:2-5-81 is issued to:(1) allow an AHO to deviate from the rules when necessary to provide due process or ensure the client is able to present his or her case; and (2) add language setting forth what the Appeals Unit supervisor may, or may not, do.

OAC 340:2-5-60, 340:2-5-66, 340:2-5-70 through 340:2-5-72, 340:2-5-75, and 340:2-5-78 are amended to:(1) reflect current terminology; and (2) update form numbers and names.

PERMANENT APPROVAL:Permanent rulemaking is requested.

LEGAL AUTHORITY:Director of Human Services; Section 162 of Title 56 of the Oklahoma Statues (56 O.S. § 162); and 56 O.S. § 168.

Rule Impact Statement

To:Programs administrator

Office of Intergovernmental Relations and Policy

From:Travis Smith

Legal Services

Date:January 24, 2014

Re:CHAPTER 2. ADMINISTRATIVE COMPONENTS

Subchapter 5. Fair Hearings

Part 7. Assistance Programs

OAC 340:2-5-60 through 340:2-5-67 [AMENDED]

OAC 340:2-5-69 through 340:2-5-76 [AMENDED]

OAC 340:2-5-78 [AMENDED]

OAC 340:2-5-80 [AMENDED]

OAC 340:2-5-81 [NEW]

(Reference APA WF 13-03)

Contact:Travis Smith 405-521-3638

A.Brief description of the purpose of the proposed rule:

Purpose. The proposed revisions to Subchapter 5 of Chapter 2 amend the rules to:(1) improve the fair hearing process; (2) conform to statutory amendments; and (3) update program name changes; and (4) add rules designed to better insure clients' rights in the hearing process.

Strategic Plan impact. The proposed rules achieve Oklahoma Department of Human Services (DHS) goals by continuously improving systems and processes by improving the hearing process to better serve clients.

Substantive changes.

OAC 340:2-5, Part 7:throughout, Food Stamps is changed to Supplemental Nutrition Assistance Program (SNAP); and Child Care Services is changed to Subsidized Child Care.

OAC 340:2-5-61 is amended to: (1) add grounds to request a hearing for Subsidized Child Care; (2) change the grounds for Medicaid appeals to conform to the Oklahoma Health Care Authority (OHCA) and DHS Interagency Agreement; and (3) allow DHS to grant a hearing for a reason not specifically set forth when due process requires.

OAC 340:2-5-62 is amended to:(1) conform to Section 168 of Title 56 of the Oklahoma Statutes (56 O.S. §168);(2) allow DHS to appeal a hearing decision; (3) enlarge the pool of DHS employees the DHS Appeals Unit supervisor may designate as administrative hearing officers(AHO);and (4) revise language regarding the Appeals Committee members.

OAC 340:2-5-63 is amended to add:(1) a second day for mailing when calculating if a hearing request is made timely; and (2) language regarding determination ofdelivery date when made by United Parcel Service, Inc. (UPS), Fed Ex, or a similar service.

OAC 340:2-5-64 is amended to:(1) add authorization for hearing requests to be made by email; and (2) re-state the requirement that, except for SNAP payments, a written hearing request must be received within 30 days of receipt of the notice.

OAC 340:2-5-65 is amended to clarify:(1) that only appeals of medical decisions made by DHS are heard by the DHS appeals unit; and (2) when the hearing summary will be received by the client after the hearing request.

OAC 340:2-5-67 is amended to remove language limiting telephone hearings to out-of-state residents.

OAC 340:2-5-69 is amended to change the delivery date of the hearing summary from immediately after receipt of notice of hearing to five business days prior to hearing.

OAC 340:2-5-73 is amended to: (1) specifically authorize the assigned AHO to decide whether to hold the hearing in-person or on the phone; and (2) add language to authorize and set forth procedures for a pre-hearing conference to be held before the hearing date.

OAC 340:2-5-74 is amended to consider a printed copy of information stored electronically as an original document.

OAC 340:2-5-76 is amended to:(1) delete language regarding members of the Appeals Committee that duplicates a portion of OAC 340:2-5-62; (2) delete obsolete language regarding the Appeals Committee process; and (3) add two options for the type of decision the Appeals Committee may issue.

OAC 340:2-5-80 is amended to conform to amendments to 56 O.S. § 168 by:(1) adding language authorizing the Director of Human Services to designate a DHS employee to issue decisions on hearing decision appeals; and (2) authorizing DHS to appeal a hearing decision.

OAC 340:2-5-81 is issued to:(1) allow an AHO to deviate from the rules when necessary to provide due process or ensure the client is able to present his or her case; and (2) add language setting forth what the Appeals Unit supervisor may, or may not, do.

OAC 340:2-5-60, 340:2-5-66, 340:2-5-70 through 340:2-5-72, 340:2-5-75, and 340:2-5-78 are amended to:(1) reflect current terminology; and (2) update form numbers and names.

Reasons. The proposed revisions to Subchapter 5 of Chapter 2 reflect statutory changes and incorporate best practices.

Repercussions. If the proposed revisions are not made, DHS will be out of compliance with state statutes and DHS clients may not receive fair hearings.

Legal authority.Director of Human Services; Section 162 of Title 56 of the Oklahoma Statues (56 O.S. § 162); and 56 O.S. § 168.

Permanent rulemaking approval is requested.

Permanent rulemaking is requested.

B.A description of the classes of persons who most likely will be affected by the proposed rule, including classes that will bear the costs of the proposed rule, and any information on cost impacts received by the Agency from any private or public entities:Individuals applying for, receiving, or being terminated from receiving benefits through the Children's Special Health Care Needs, Subsidized Child Care, Supplemental Nutritional Assistance, Temporary Assistance for Needy Families, Disaster Grant, Energy Assistance, Medicaid, Title XX Social Services, and State Supplement Payment programs may be affected.

C.A description of the classes of persons who will benefit from the proposed rule: All affected individuals requesting a hearing from DHS benefit.

D.A description of the probable economic impact of the proposed rule upon the affected classes of persons or political subdivisions, including a listing of all fee changes and, whenever possible, a separate justification for each fee change:The revised rules do not have an economic impact on the affected entities. There are no fee changes associated with the revised rules.

E.The probable costs and benefits to the Agency and to any other agency of the implementation and enforcement of the proposed rule, the source of revenue to be used for implementation and enforcement of the proposed rule and any anticipated effect on state revenues, including a projected net loss or gain in such revenues if it can be projected by the Agency:The probable cost to DHS includes the cost of printing and distributing the rules, estimated to be less than $20. The revised rules will result in enhanced delivery of services to individuals applying for and receiving benefits from DHS who request a hearing.

F.A determination whether implementation of the proposed rule will have an impact on any political subdivisions or require their cooperation in implementing or enforcing the rule:The proposed rules do not have an economic impact on any political subdivision, nor will the cooperation of any political subdivisions be required in implementation or enforcement of the rules.

G.A determination whether implementation of the proposed rule will have an adverse economic effect on small business as provided by the Oklahoma Small Business Regulatory Flexibility Act:There are no anticipated adverse effects on small business as provided by the Oklahoma Small Business Regulatory Flexibility Act.

H.An explanation of the measures the Agency has taken to minimize compliance costs and a determination whether there are less costly or nonregulatory methods or less intrusive methods for achieving the purpose of the proposed rule: There are no less costly or non-regulatory methods or less intrusive methods for achieving the purpose of the proposed rules.

I.A determination of the effect of the proposed rule on the public health, safety, and environment and, if the proposed rule is designed to reduce significant risks to the public health, safety, and environment, an explanation of the nature of the risk and to what extent the proposed rule will reduce the risk:

The proposed revisions have no effect on the public health, safety, and environment.

J.A determination of any detrimental effect on the public health, safety, and environment if the proposed rule is not implemented: If the proposed rule revisions are not implemented, DHS clients may not receive fair hearings.

K.The date the rule impact statement was prepared and, if modified, the date modified:Prepared June 3, 2013; modified December 3, 2013; modified January 24, 2014.


SUBCHAPTER 5. FAIR HEARINGS

PART 7. ASSISTANCE PROGRAMS

340:2-5-60. Legal bases

Revised 7-1-14

Section 168 of Title 56 of the Oklahoma Statutes provide provides an administrative hearing for a an Oklahoma Department of Human Services (DHS) client who is aggrieved by a DHS action, or failure to act, in any of the for programs listed in Oklahoma Administrative Code (OAC) 340:2-5-61.

340:2-5-61. Client hearings conducted by the Appeals Unit

Revised 7-1-14

(a) Children's Special Health Care Needs Program.Circumstances which that constitute a basis for a hearing are:

(1) the a denial of an individual's application for services is denied;

(2) a decision regarding eligibility has not been reached within 45 days from the application date of application;

(3) the client disagrees with the date on which assistance begins; or

(4) the client is dissatisfied with an action affecting eligibility for receipt of medical services or with the relevant policy as applied to his or her situation.

(b) Subsidized Child care services Care.A hearing may be granted if:

(1) there is a delay in reaching a decision on an application for assistance of more than 30 days;

(2) the client disagrees with the date on which assistance begins; or

(3) the client disagrees with the amount of the family share co-payment; or

(4) the client, family, or guardian is aggrieved because of Oklahoma Department of Human Services (DHS) actions to suspend, terminate, or reduce services.

(c) Services for persons with developmental disabilities.

(1) A hearing may be granted if:

(A) the application for services is denied;

(B) the Department of Human Services (DHS) action regarding the application for state-funded services has not occurred within 180 days from the date DHS received the application and the client has exhausted the remedies afforded by the Office of Client Advocacy (OCA);

(C) when resources are sufficient for initiation of Home and Community Based Waivered Services and action is not taken within 45 days; or

(D) the client, family, or guardian is aggrieved because of the DHS actions action to suspend, terminate, or reduce services.

(2) All other complaints or grievances are made to OCA and are addressed in accordance with the per OCA policies and procedures of OCA.

(3) Nothing contained in this subsection is construed as a limitation of the rights of class members regarding the review and appeal procedures set forth in the Consent Decree in Homeward Bound vs. The Hissom Memorial Center.

(d) Food Stamp Supplemental Nutrition Assistance Program (SNAP).A hearing may be granted if:

(1) the household's application is denied;

(2) a decision regarding eligibility has not been reached within 30 days from the date of application;

(3) a requested change in the amount of benefits has not been made within ten 10 days from the request;

(4) a decision regarding loss of benefits occurred in the previous 90 days; or

(5) the household is aggrieved by:

(A) reason of DHS interpretation and application of Food Stamp Program SNAP policy as applied to the household's situation during the certification period; or

(B) any other DHS action of DHS in its administration of the program which that affects the household's participation.

(e) Individual and Family Disaster Grant Program.A hearing may be granted if:

(1) the applicant's application is denied;

(2) the applicant is dissatisfied with the amount of the grant award; or

(3) there is an unreasonable delay relating to the application.

(f) Low Income Home Energy Assistance Program and Energy Crisis Assistance Program.A hearing may be granted if:

(1) the applicant's application is denied;

(2) there is a delay in reaching a decision regarding eligibility on an application for assistance of more than 30 days;

(3) the client disagrees with the date on which assistance begins; or

(4) the applicant is dissatisfied with the amount of the payment.

(g) Medical Assistance Program under Title XIX of the Social Security Act.

(1) The Oklahoma Health Care Authority (OHCA) is the state agency authorized to operate Oklahoma's Medical Assistance Program pursuant to Title XIX of the Social Security Act.Through an interagency agreement with OHCA, DHS:

(A) determines financial and non-financial eligibility for certain categories of eligibility for the Medical Assistance Program;

(B) conducts hearings regarding:

(i) financial and non-financial eligibility for certain categories of eligibility for the Medical Assistance Program; and

(ii) the scope of services provided through the ADvantage Program waiver services DHS Developmental Disabilities Services; and

(C) does not conduct hearings regarding:

(i) the scope of services received for a person found eligible for the Medical Assistance Program, except as described in (B)(ii) of this subsection;

(ii) payment for services;

(iii) drug coverage for clients who are medically needy; or

(iv) enrollment, disenrollment, and assignment within managed care plans when the action being appealed is based on an OHCA decision, or the action relates to the Advantage Waiver Program.

(2) Circumstances which that constitute a basis for a hearing are:

(A) the individual's application for medical services is denied;

(B) a decision regarding eligibility has not been reached within the specified time limit from the date of the application:

(i) five working business days for presumptive eligibility for pregnant women;

(ii) 20 days for:

(I) categorically related to pregnancy related services; and

(II) Medical Assistance only and categorically related to Aid to Families with Dependent Children Temporary Assistance for Needy Families (TANF);

(iii) 30 days for:

(I) Refugee Medical Assistance;

(II) Categorically related to Aid to the Aged; and

(III) Medical Assistance only and categorically related to Aid to Families with Dependent Children TANF and establishing incapacity;

(iv) 45 days for:

(I) Medical Assistance Program only, not related to age, pregnancy or disability;

(II) request for long-term care on an active State Supplement Payment (SSP) or Medical Assistance case;

(III) Medical Assistance Program for optional tuberculosis (TB) coverage group; and

(IV) Medical Assistance Program for long-term care request on active SSP for Aged, Blind, or Disabled cases;

(v) 60 days for:

(I) Medical Assistance Program only; or

(II) categorically related to Aid to the Blind or Disabled when disability must be established;

(C) the client disagrees with the date on which assistance begins; or

(D) the client is dissatisfied with any other action affecting eligibility for Medical Assistance.

(3) Administrative hearings are not granted when either state or federal law requires automatic adjustments for classes of recipients unless the reason for an individual appeal is incorrect eligibility determination.

(h) Social services under Title XX of the Social Security Act.A hearing may be granted if:

(1) the client is aggrieved because of:

(A) denial of a request for, or exclusion from, a service program;

(B) failure to take account of consider the individual's choice of service in assignment of program; or

(C) a decision requiring participation in a service program; or

(2) the recipient is aggrieved about the operation of the service program.

(i) SSP for the Aged, Blind, and Disabled, and Temporary Assistance to Needy Families (TANF), including TANF Emergency Assistance.

(1) A hearing is not granted in these programs when either state or federal law or regulation requires automatic grant adjustments for classes of recipients unless the reason for an individual appeal is incorrect grant computation.

(2) A hearing may be granted when:

(A) there is a delay in reaching a decision on an application for assistance of more than:

(i) five working business days for TANF Emergency Assistance;

(ii) seven days for Diversion Assistance;

(iii) 30 days for:

(I) SSP for the Aged;

(II) TANF; or

(III) Refugee Cash Assistance;

(iv)(iii) 45 days for SSP for the Blind; or

(v)(iv) 60 days for SSP for the Disabled;

(B) there is a delay of more than ten 10 days in implementing a requested change regarding an assistance payment;

(C) the client disagrees with the date on which assistance begins;

(D) the assistance payment has been was discontinued or suspended;

(E) the client is aggrieved regarding protective payments because:

(i) payment is made in the form of a protective payment; or

(ii) of any action with regard to the protective payment, such as the protective payee selected; or

(F) the client is aggrieved about conditions of payment, including the requirements for work, medical treatment, or training, but only if when the requirement complained of, if true, would constitute a violation of DHS regulations policy.

(j) Assistance. In any other program which constitutes assistance within the definition of Section 164 of Title 56 of the Oklahoma Statutes, a hearing may be requested if the client disagrees with:

(1) denial or termination of assistance;

(2) amount of assistance; or

(3) the conditions on receipt of benefits.

(k) Overpayments.If a client is notified of an overpayment in any of the programs listed in this Section, the client may request a hearing regarding:

(1) the existence of the overpayment;

(2) the amount of the overpayment;

(3) when appropriate, whether the overpayment was caused due to Agency DHS error, inadvertent client error, or willful misrepresentation by the client; and

(4) when appropriate, the client's liability to repay the overpayment.

(l) Any action, not specified in subsections (a) through (k) of this Section, for which DHS is required to provide an administrative hearing by state or federal constitution, statute or regulation.

340:2-5-62. Definitions

Revised 7-1-14

The following words and terms, when used in this Part, shall have the following meanings, unless the context clearly indicates otherwise:

"Access to the entire case file" means that the client and authorized representative have, with the exceptions described in this Section, the right to review the entire contents of the case file(s) which that relates to the issue(s) appealed, and all documents and records to be used by the Oklahoma Department of Human Services (DHS) at the hearing.

(A) Certain documents and information within the case file are made confidential by state and federal laws and therefore are not available to the client or authorized representative, unless such information is to be used by DHS at the hearing.Confidential documents and information include:

(i) child abuse or neglect reports including the names and information from complainants;

(ii) psychological and medical reports, unless there are written releases from both the author and the patient;

(iii) information from other family members that is unrelated to the appeal;

(iv) information from references or witnesses, unless there is a written release of information; and

(v) confidential Food Stamp Supplemental Nutrition Assistance Program (SNAP) information.

(B) The review may be made at a reasonable time before the date of the hearing as well as during the hearing.

(i) When a request for file access is made, the local office must make arrangements for the client, authorized representative, or both, to review the case file with as much privacy as possible.

(ii) A supervisory staff member observes the review of the case file to ensure that the contents of the case file are not removed from the record.

(iii) The client and authorized representative are free to make written notes from the record or make copies of documents.

(iv) A client or representative is not charged for copies of documents made for the purpose of hearing preparation or presentation.

"Administrative hearing officer (AHO)" means:

(A) the professional staff member of the Appeals Unit who has been DHS employee designated by the Appeals Unit supervisor to conduct an administrative hearing. The AHO may not have had a part in the action or failure to act, which is the subject of the appeal; or

(B) a lawyer who has a contract with DHS to preside over administrative hearings which that are the responsibility of the Appeals Unit, and who has been designated by the Appeals Unit supervisor to preside over a particular case.

"Appeals Committee" means the committee which that makes the hearing decision, consisting of:

(A) the AHO who presided over a hearing,;

(B) the division director of the affected program or the division director's designee,.The designee must report directly to the division director; and

(C) the Appeals Unit supervisor.If the Appeals Unit supervisor made, or helped make the decision that led to the action that is the subject of a hearing, a lawyer employed by DHS Legal Services is designated by the supervisor to vote in his or her place.The DHS Director of DHS has the authority to alter the members as he or she deems appropriate.

"Appeals Unit" means the unit established within the Legal Division which is Services responsible for conducting administrative hearings.

"Appeals Unit supervisor" means the person designated by the DHS general counsel to supervise the Appeals Unit.

"Authorized representative" means a person authorized by the client to represent him or her in the hearing process.

(A) Any party may be represented by a lawyer, or legal intern, licensed by the Supreme Court of Oklahoma.

(B) A party may be represented by a non-lawyer only when federal law requires that non-lawyer representatives are allowed.Appeals in which non-lawyer representatives may appear include, but are not limited to:

(i) Food Stamp Program SNAP;

(ii) Temporary Assistance to for Needy Families (TANF);

(iii) Medical Assistance Program SoonerCare,Oklahoma's medical assistance program authorized per Section 1396, et seq. of Title 42 of the United States Code;

(iv) State Supplement Payment for the Aged, Blind, and Disabled;

(v) TANF Emergency Assistance;

(vi) Services for persons with developmental disabilities; and

(vii) Low Income Home Energy Assistance Program.

(C) If the representative is not a lawyer, DHS must verify the authority of the person to represent the client through:

(i) personal contact with the client;

(ii) an original written authorization signed by the client; or

(iii) in instances where the client is unable to give oral or written authorization, a non-lawyer may represent a client if when the proposed representative is a:

(I) friend or relative, and circumstances show that the proposed representative is knowledgeable about the issues involved in the case and will act in the client's best interest; or

(II) vendor of services relating to the issue in dispute and has no interests adverse to the client; there is no friend or relative who is willing and able to adequately represent the client; circumstances show that the vendor is knowledgeable about the issues involved in the case; and will act in the client's best interest.

"Client" means:

(A) an applicant for DHS services or payments from DHS in any of the programs described at per Oklahoma Administrative Code (OAC) 340:2-5-61; or

(B) a recipient of DHS services or payments from DHS in any of the programs described at per OAC 340:2-5-61.

"DHS" means the Oklahoma Department of Human Services.

"Fair hearing" means a an administratiave hearing held pursuant to Section 168 of Title 56 of the Oklahoma Statutes.

"Hearing" means the process by which an AHO obtains evidence and makes a decision regarding the protested action, or failure to act, by DHS.

"Hearing request" means a clear expression by a client or authorized representative of the client's desire to contest an action, or failure to act, by DHS through the presentation of testimony and evidence to an AHO.Except for the Food Stamp Program SNAP, a hearing request must be made in writing and contain the signature of the client or authorized representative.

"Hearing summary" means a document prepared by the local office stating the reasons for the local office action or inaction.It provides the client with information needed to prepare for the hearing.The six areas covered in the hearing summary are described at per OAC 340:2-5-66.

"Local office" means any part of DHS which is responsible for the act, or failure to act, which is the subject of the hearing request.

"Local staff member" means the particular staff member who was responsible for the protested action, or failure to act, and who represents DHS in activities during the time period extending from the client's request for a hearing through implementation of the hearing decision.

"OAC" means the Oklahoma Administrative Code, which contains the regulations promulgated by each state agency.

"Official record" means a record consisting of:

(A) all evidence offered for introduction at the hearing;

(B) an electronic recording of the hearing; and

(C) the hearing decision.

340:2-5-63. Time

Revised 7-1-14

In computing any period of time prescribed or allowed by this Part, the day of the act, or event, from which the designated period of time begins to run is not included.The last day of the period so computed is included, unless it is a weekend, or a legal holiday as defined by the Oklahoma Statutes.Unless otherwise noted, all time periods are calendar days.

(1) Items received by the client from the Oklahoma Department of Human Services (DHS) for:

(A) mailed items:

(i) time deadlines begin with the second day on which mail is delivered after the date of mailing to the client's last known address; and

(ii) items are considered mailed on the date on the notice, determination, or decision unless otherwise indicated by the facts, such as the postmark on the envelope containing the item mailed; and¢ 1

(B) items delivered in person:

(i) time deadlines begin with the day after the date of delivery to the client; and ¢ 2

(ii) items are considered delivered to the client on the date the item is:

(I) given to the client or authorized representative; or

(II) left at the client's last known address with a person who is age 15 years of age or older.¢ 3

(2) Items are considered received by DHS from the client if transmitted:

(A) via the United States Postal Service (USPS), on the date it is mailed. The mailing date will be:

(i) as shown by the postmark;

(ii) in the absence of a postmark, the postage-meter mark on the envelope in which it is received; or

(iii) if not postmarked or postage-meter marked, or if the mark is illegible, the date received by DHS; or

(B) by means of the United Parcel Service, Inc. (UPS), FedEx, or a similar entity:

(i) on the date shown on the package, or document attached by the delivering entity to the outside of the package, that the item was entrusted to the delivering entity; or

(ii) in the absence of such date, on the date of receipt by DHS; or

(B)(C) by any means other than the USPS not listed in paragraph (2) of this Section, on the date it is received by DHS.

(3) The submission by a client of any item beyond the specified time period are considered timely if the administrative hearing officer is satisfied that the delay is due to a cause which that is beyond the control of the client.

INSTRUCTIONS TO STAFF 340:2-5-63

Revised 7-1-14

1.Example:If When a Temporary Assistance to for Needy Families (TANF) termination notice is generated on August 31st, but the postmark on the envelope in which the notice was mailed is September 5th fifth, the first day of the 30-day period within which the client can make a request for hearing is September 6th seventh.The 30th day of the appeal period is October 6th seventh.

2.Example:If a TANF client is handed a termination notice on Wednesday, October 25th June fourth the first day of the 30 day period within which the client can make a hearing request is Thursday, October 26th June fifth.Since the 30th day falls on Friday, November 24th July fourth, which is a holiday, the client is allowed to file his or her appeal as late as the end of the next business day, Monday, November 27th July fifth.

3.Leaving an item on the client's door, mailbox, or similar location does not constitute delivery to the client.; mailing is the alternative.

340:2-5-64. Hearing request¢ 1

Revised 7-1-14

(a) In the Food Stamp Supplemental Nutrition Assistance Program a hearing request is any indication by a client or authorized representative that the client wants to contest a an Oklahoma Department of Human Services (DHS) action, or failure to act, through the hearing process.¢ 21

(b) In all other cases coming within this Part, a hearing request is a written expression by a client or authorized representative that the client wants to contest a DHS action, or failure to act, through the hearing process.¢ 32

(1) The writing must be signed by the client or authorized representative.

(2) An original document, as well as a facsimile of a written document, are both considered a writing.

(3) An email, or a document attached to an email from the client or authorized representative, is considered a writing signed by the client.

INSTRUCTIONS TO STAFF 340:2-5-64

Revised 7-1-14

1.In all types of cases, when the client or authorized representative indicates a wish to have a hearing, the local office employee determines whether it is feasible for the client to attend a hearing in the local office. If not, the client and interviewer agree on another location to recommend to the administrative hearing officer for the hearing.The recommended place for the hearing is entered on Form H-1, Hearing Request.

2.Food Stamp Supplemental Nutrition Assistance Program (SNAP).

(1) When a client or authorized representative makes a hearing request, the local office:

(A) completes the local office portion of Oklahoma Department of Human Services (DHS)Form H-1 13MP001E, Request for a Fair Hearing;

(B) provides the client or authorized representative with Form H-1 13MP001E, either by mail or in person;

(C) requests that the client portion of Form H-1 13MP001E be completed;

(D) offers assistance in completing Form H-1 13MP001E; and

(E) requests that the Form H-1 13MP001E be returned to the local office within ten 10 days.

(2) If Form H-1 13MP001E is returned within ten 10 days, the local office sends the completed form to the Appeals Unit with a an attached copy attached of the:

(A) the notice being appealed, if any; and

(B) any written document, including a fax or printed e-mail email, other than Form H-1 13MP001E, in which the client or authorized representative indicated that the client wants an administrative hearing.

(3) If Form H-1 13MP001E is not returned within ten 10 days, the local office sends a copy of the form, with the local office portion completed, to the Appeals Unit along with:

(A) a memo describing the:

(i) the date and manner in which the hearing request was made;

(ii) the reason for the hearing request;

(iii) the date and manner in which Form H-1 13MP001E was provided to the client or authorized representative; and

(iv) the response of the client or authorized representative, if any, following the receipt of Form H-1 13MP001E;

(B) a copy of the notice being appealed, if any; and

(C) any written document, including a fax or printed e-mail email, other than Form H-1 13MP001E, in which the client or authorized representative indicated that the client wants an administrative hearing.

32.All cases except Food Stamp Program SNAP.

(1) If When the client or authorized representative has indicated in writing, signed by the client or authorized representative, that the client wants a hearing:

(A) the local office:

(i) offers Form H-1 13MP001E to the client or authorized representative;

(ii) completes the local office portion of Form H-1 13MP001E;

(iii) provides the client or authorized representative with Form H-1 13MP001E, either by mail or in person;

(iv) requests that the client portion of Form H-1 13MP001E be completed;

(v) offers assistance in completing Form H-1 13MP001E; and

(vi) requests that the Form H-1 13MP001E be returned to the local office within ten 10 days;

(B) if Form H-1 13MP001E is returned within ten 10 days, the local office sends to the Appeals Unit:

(i) the completed Form H-1 13MP001E;

(ii) a copy of the notice being appealed, if any; and

(iii) any faxed or printed e-mail email, or other written document, other than Form H-1 13MP001E, in which the client or authorized representative indicated that the client wants an administrative hearing; and

(C) if Form H-1 13MP001E is not returned within ten 10 days, the local office sends to the Appeals Unit:

(i) a copy of the notice being appealed, if any; and

(ii) any faxed or printed e-mail email, or other written document, other than Form H-1 13MP001E, in which the client or authorized representative indicated that the client wants an administrative hearing.

(2) If the client or authorized representative has indicated that the client wants a hearing in any manner other than in writing, signed by the client or authorized representative, the local office:

(A) informs the client or authorized representative that the client is not considered to have requested a hearing unless the hearing request is made in writing and signed by the client or authorized representative and is received by the Oklahoma Department of Human Services (DHS) within 30 days of the later of:

(i) 30 days of the notice being appealed; or

(ii) ten days of the initial indication that the client wants a hearing;

(B) offers Form H-1 13MP001E to the client or authorized representative and:

(i) completes the local office portion of Form H-1 13MP001E;

(ii) provides the client, or authorized representative, with Form H-1 13MP001E, either by mail or in person;

(iii) requests that the client portion of Form H-1 13MP001E be completed;

(iv) offers assistance in completing Form H-1 13MP001E; and

(v) requests that the Form H-1 13MP001E be returned to the local office within ten 30 days of the date of the notice; and

(C) if Form H-1 13MP001E is returned at any time, sends the completed form to the Appeals Unit with a copy attached of:

(i) the notice being appealed, if any;

(ii) a written document, including a fax or printed e-mail email, other than Form H-1 13MP001E, in which the client or authorized representative indicated that the client wants an administrative hearing; and

(iii) if Form H-1 13MP001E is returned beyond the time described in (a) of this Instruction a memo describing the:

(I) date and manner in which the client or authorized representative indicated the client wanted a hearing;

(II) reason for the hearing request;

(III) date and manner in which Form H-1 13MP001E was provided to the client or authorized representative; and

(IV) response of the client or authorized representative, if any, following receipt of H-1 13MP001E.

340:2-5-65.Explanations by the local office when a client or authorized representative indicates that a hearing is desired

Revised 7-1-14

For any of the programs which come within this Part, at the time a client or authorized representative indicates that the client wants an administrative hearing, the local office must explain the information listed in (1) - (4) of this subsection Section to the client or authorized representative.

(1) If the issue involves a proposed closure or reduction of State Supplemental Payment, Temporary Assistance to for Needy Families (TANF), social services, medical assistance, or food stamps benefits, known in Oklahoma as Supplemental Nutrition Assistance Program (SNAP), the client or authorized representative is advised:

(A) of the option of having benefits continued pending outcome of the hearing if, within ten 10 days of the notice being appealed, the client or authorized representative submits a written request for a hearing which is signed by the client or authorized representative;

(B) if he or she fails to indicate a preference in a written request for hearing made within ten 10 days following mailing of the notice, benefits are continued during the hearing process and if the hearing is not decided in his or her favor, a claim is made against him or her for all benefits received pending the hearing decision;

(C) if benefits are continued during the appeals process and the hearing is not decided in his or her favor, a claim will be is made against him or her for all benefits received pending the hearing decision; and

(D) if the client elects to not continue benefits during the pendency of the appeal, that if the appeal is decided in his or her favor, the local office will authorize authorizes supplemental payment(s) for the period of time covered during the appeal.

(2) If the issue concerns a Food Stamp Program SNAP case, the household or authorized representative is advised:

(A) if necessary, he or she is entitled to receive a postponement of a scheduled hearing. The household is advised that the postponement will not exceed 30 days and that the time limit for action on the decision will be extended for as many days as the hearing is postponed; and

(B) if the client, such as a migrant farm worker, plans to move from the state before the end of the 60 days in which a hearing decision must be made, that processing of the hearing will be expedited in order that a decision may be rendered before he or she leaves the state.

(3) When a hearing is requested on a medical decision made by the Oklahoma Department of Human Services (DHS), the client or authorized representative is advised:

(A) of the right to introduce as evidence at the hearing the report of any examination he or she may have obtained, provided that the records are signed by the health care provider; and

(B) when the hearing involves medical issues, such as those concerning a diagnosis, if the administrative hearing officer (AHO) considers it necessary, the Department of Human Services (DHS) will obtain at the expense of DHS expense:

(i) an examining physician's report;

(ii) a medical review team's decision; or

(iii) a medical assessment other than that of the person or persons involved in making the original decision.

(4) In every case, the local office advises the client or authorized representative:

(A) that the request for hearing will be sent to the Appeals Unit and a letter will be sent from that office regarding the date, time, and place of the hearing;

(B) of the right to be represented by legal counsel if desired, but that DHS does not provide, or pay for, legal representation.If free legal services are available in the community this is explained and a list is given to the client;¢ 1

(C) that the client, authorized representative, or both, has access to the following at a reasonable time before the date of the hearing, as well as during the hearing:

(i) all documents to be introduced at the hearing by DHS at the hearing; and

(ii) the case file, except for confidential documents;

(D) that the client can request that may ask the AHO to require that:

(i) individual DHS employees be present at the hearing; and

(ii) DHS produce specific records at the hearing;

(E) that after receipt of the notification that before the hearing, has been scheduled the client will receive a copy of the hearing summary, documents, and records the local office will present at the hearing;

(F) that transportation equivalent to the rate for public transportation is paid for the client and witnesses, if any, when essential for attendance at the hearing;

(G) that the testimony given by the client, witnesses, and the local office is taken by an AHO, who records the proceedings;

(H) that an opportunity is given at the time of the hearing to give all the evidence on the points at issue that the client believes necessary and that the evidence can be presented by anyone he or she desires;

(I) that if the client needs help in understanding how to present evidence, explanation is given regarding some of the ways in which this may be done, such as presenting evidence orally, in writing, or by having anyone the client chooses present the evidence for him or her; and

(J) that the client will receive the written decision of the AHO.

INSTRUCTIONS TO STAFF 340:2-5-65

Issued 7-1-14

1.When free legal services are available in the community this is explained and a list is given to the client.

340:2-5-66. Hearing summary

Revised 7-1-14

(a) As soon as a request for a hearing is received:

(1) in cases involving services through the Developmental Disabilities Services Division, a programs manager prepares Oklahoma Department of Human Services (DHS) Form H-1-A 13MP002E, Hearing Summary; and

(2) in other cases, the local staff member responsible for the case prepares Form H-1-A 13MP002E.¢ 1The supervisor of the local staff member is responsible for review of the Form H-1-A 13MP002E for completeness and for pertinence to the point(s) at issue.

(b) The six areas covered in the hearing summary are:

(1) the type of decision, action, or inaction on the part of the local office which that is the subject of the hearing request;

(2) nature of client's complaint;

(3) point at issue, exactly what the client is appealing;

(4) chronological summary of pertinent events and evidence leading to the action or inaction;

(5) policy including:

(A) verbatim quotations from the manual regarding the policy on which the decision was based; or

(B) copies of applicable policy with the pertinent portions marked; and

(6) documents and other evidence which that supports the decision being appealed and which that the local office intends to introduce at the hearing.

(c) A copy of Form H-1-A 13MP002E is delivered to the client as soon as a copy of the notification of the hearing date is received from the Appeals Unit no later than the fifth business day before the hearing.

INSTRUCTIONS TO STAFF 340:2-5-66

Revised 7-1-14

1.(a) Even though local staff assigned to the Field Operations Division are not responsible for the final eligibility decision on Individual and Family Disaster Grants Program, these staff members collect the information on which decisions are made and are therefore, responsible for preparation of the hearing summary on Form H-1-A, Hearing Summary, and for presentation of it at the hearing.

(b) In some instances, the local office decision that is being appealed was based in whole or in part on information obtained by another unit.When such this is the situation, the local office incorporates the information so obtained into the hearing summary in the same manner that information obtained by the local office is incorporated into the summary.

(c)(b) The supervisor of the local staff member is responsible for review of the hearing summary for completeness and for pertinence to the point(s) at issue.

340:2-5-67. Appeals Unit action following receipt of a hearing request receipt

Revised 7-1-14

(a) Upon receipt of a hearing request receipt in the Appeals Unit, a hearing number is assigned.

(b) The Appeals Unit supervisor assigns the case to an administrative hearing officer (AHO).

(c) The AHO determines if the hearing request was timely made timely.¢ 1

(1) A hearing request is considered timely:

(A) in the Food Stamp Supplemental Nutrition Assistance Program (SNAP), if when the client or authorized representative indicates, in any way, the desire to have a hearing within 90 days of the action, or failure to act, which that is being appealed;

(B) in all other cases:

(i) if the initial indication that the client wants a hearing is in writing, signed by the client or authorized representative, if the writing was received by the Oklahoma Department of Human Services (DHS) within 30 days of the action, or failure to act, which is being appealed; or

(ii) if the initial indication that the client wants a hearing other than in writing, signed by the client or authorized representative:

(I) the indication to DHS was made to DHS within 30 days of the action, or failure to act, which is being appealed; and

(II) DHS receives a written hearing request, signed by the client or authorized representative within the later of ten 10 days from the date of the initial indication that the client wanted a hearing, or 30 days of the action, or failure to act, which is being appealed.

(2) If When the AHO or Appeals Unit supervisor determines that the hearing request was not timely made timely, the AHO notifies the client and authorized representative that the hearing request is dismissed.This notice includes a statement of appeal rights.

(d) If When a hearing request was timely made timely, the AHO determines whether the request relates to an appealable issue.¢ 21

(e) If When a hearing request is both timely and relates to an appealable issue, paragraph (1) or (2) of this subsection apply.

(1) If When the client appeal relates to a delay in decision, or a delay in acting on a case change, the evidence is reviewed by an AHO.

(A) If the available information clearly shows that there has been a delay, the AHO issues a decision, without holding a hearing.

(B) If the available information does not clearly show that there has been a delay, the AHO schedules a hearing to determine whether there has been a delay.

(2) If When the request for hearing does not involve delay, the Appeals Unit mails a notice of hearing to the client.Copies of this notification are sent to the local office, appropriate supervisory staff, and the authorized representative, if any.¢ 32

(A) The notification is mailed prior to the date of hearing not less than:

(i) ten (A) 10 days for Food Stamp Program SNAP appeals, unless waived by the client; and

(ii)(B) eight days in all other cases, unless waived by the client.

(B) If the client moves from Oklahoma to another state and requests an administrative hearing in a timely manner, the client is advised that he or she has the option of scheduling the hearing by:

(i) returning to Oklahoma to attend a scheduled hearing.In this case, the hearing is scheduled and conducted in the same manner as a client who continues to live in Oklahoma; or

(ii) telephonic hearing.In this case the hearing is scheduled and conducted in the manner described at OAC 340:2-5-24.

INSTRUCTIONS TO STAFF 340:2-5-67

Revised 7-1-14

1.If it appears that a hearing request was not timely, but that the delay might be attributable to the Department of Human Services (DHS) or the United States Post Office, the administrative hearing officer (AHO) sends a letter to the client or authorized representative which requests information regarding the delay.The letter contains a deadline for submission.

2.Issues on which an appeal can be granted are described at per Oklahoma Administrative Code (OAC) 340:2-5-61.When changes in either state or federal law require automatic adjustment affecting all, or most, cases in any category, appeal is available only if when there is an error in computation.

3.The notice of hearing to the client contains:

(1) the name of the AHO who will conduct the hearing;

(2) the date, time, and place of the hearing;

(3) a request for the individual to have ready at the time of the hearing any evidence he or she wishes to present;

(4) a statement regarding the individual's right to have other persons attend the hearing to give testimony;

(5) a statement that the client or authorized representative, may request that the AHO require the presence at the hearing of:

(A) particular DHS employees;

(B) DHS records; or

(C) other DHS evidence in the possession of DHS;

(6) a statement that the client, authorized representative, or both, has access to the following at a reasonable time before the date of the hearing, as well as during the hearing:

(A) all documents to be introduced by DHS at the hearing; and

(B) the case file, except for confidential documents;

(7) a statement that failure to appear at the scheduled hearing without good cause will result in dismissal of the hearing request;

(8) an explanation of how consideration of 'good cause' can be requested; and

(9) an invitation for the individual to raise any questions with the local office.

340:2-5-69. Local office contact with client after receipt of the hearing notice receipt of hearing

Revised 7-1-14

(a) Immediately upon receipt of At least five business days before the notice of hearing, the local office representative contacts the client or authorized representative and gives him or her a copy of the Oklahoma Department of Human Services Form H-1-A 13MP002E, Hearing Summary.¢ 1

(b) Form H-1-A 13MP002E must be delivered at least five complete working business days prior to the date scheduled for the hearing.If Form H-1-A 13MP002E is not delivered timely, paragraph(1) or (2) of this subsection applies.

(1) If When the local office shows good cause for failure to deliver Form H-1-A 13MP002E timely, the administrative hearing officer (AHO) continues the hearing to another date if the client is not prepared to proceed as a result of receiving Form H-1-A 13MP002E late.

(2) If When the local office does not show good cause for failure to deliver Form H-1-A 13MP002E timely, the AHO may prohibit the local office from presenting evidence at the hearing and decide the case based only on evidence presented by the client.

(c) Immediately upon receipt of the hearing notice, the local office submits a copy of the Form H-1-A 13MP002E to the Appeals Unit.

INSTRUCTIONS TO STAFF 340:2-5-69

Revised 7-1-14

1.At this contact, the local office representative also determines the client's plans for attending participating in the hearing.If When it is learned that the client or authorized representative is unable to attend participate in the hearing, the local office advises the Appeals Unit of the reason and of dates on which when the client or authorized representative is available.

340:2-5-70. Hearing continuance, withdrawal, and dismissal

Revised 7-1-14

(a) Continuance of hearing.

(1) At any point after setting a case for hearing, the administrative hearing officer (AHO) may determine that additional evidence is needed before a final decision can be made.If so, the AHO may continue the hearing and direct the parties to take whatever action the AHO deems necessary.The AHO may set time limits for the actions.

(2) If the AHO is informed, in advance of a hearing, that the client, authorized representative, or local office representative cannot attend a participate in the hearing at the scheduled time, the AHO continues the hearing if when good cause exists for the person's absence.The AHO may require whatever proof of good cause that is deemed necessary.

(3) Clients who are appealing an action in the Food Stamp Supplemental Nutrition Assistance Program are entitled to one hearing continuance of up to 30 days, for which good cause need not be shown.

(b) Withdrawal of request for hearing.A client or authorized representative may withdraw a hearing request only by a signed writing.¢ 1 Any other indication of a desire to withdraw a hearing request is insufficient.¢ 2

(c) Dismissal of hearing request.The AHO may dismiss a hearing request if when, in the AHO's judgment:

(1) the Oklahoma Department of Human Services (DHS), by written notice, withdraws the action appealed and restores the client's status which existed before the action appealed was taken.Continuation of benefits because a hearing request has been made does not constitute restoration of the client's status;

(2) DHS implements action and issues a notice to correct an a DHS error made by DHS which that resulted in the appeal; or

(3) there are circumstances which that indicate that it is impossible to hold the hearing, such as the death of a client.

INSTRUCTIONS TO STAFF 340:2-5-70

Revised 7-1-14

1.When a local office receives a written statement signed by the client or authorized representative that the client wishes wants to withdraw the hearing request that is signed by the client or authorized representative, the local office:

(1) completes the local office portion of Form H-3 13MP004E, Withdrawal of Request for Fair Hearing;

(2) attaches the signed hearing withdrawal to Form H-3 13MP004E; and

(3) mails both to the Appeals Unit.

2.When a client or authorized representative indicates the wish wants to withdraw a hearing request in any manner other than by signed writing, the Oklahoma Department of Human Services (DHS) employee:

(1) to whom this wish request is made known, informs the client or authorized representative of the requirement that withdrawal of a hearing request may only be made in writing, and signed by the client or authorized representative;

(2) offers any assistance necessary for the client or authorized representative to properly withdraw the hearing request; and

(3) offers the client or authorized representative Form H-3 13MP004E.

340:2-5-71.Presence of Oklahoma Department of Human Services (DHS) employees or DHS records at hearings¢ 1

Revised 7-1-14

(a) An administrative hearing officer (AHO), at the request of a client, authorized representative, or on his or her own motion, may require the presence at a hearing of:

(1) a particular DHS employee;

(2) DHS records; and

(3) other DHS evidence in the possession of DHS.

(b) A client's request for the presence of a DHS employee, DHS documents, or other evidence, is granted by the AHO only if when the client shows that the presence of the DHS employee or evidence is:

(1) relevant to the issues involved in the hearing;

(2) necessary for determination of the issue; and

(3) not otherwise obtainable by the client.

(c) If When the AHO determines that a DHS employee, or DHS evidence in DHS possession, must be present at the hearing, the AHO gives notice to the DHS employee, or office where the evidence is located the:

(1) date, time, and location of the hearing; and

(2) employee's name, records, or other evidence which that must be present.

(d) If When, without good cause, the DHS employee fails to appear or DHS fails to produce the needed records or other evidence, the AHO may:

(1) decide the case as if the missing evidence was as the client asserted, if the client's assertion is reasonable; or

(2) continue the hearing for so the missing testimony or evidence to may be produced.

INSTRUCTIONS TO STAFF 340:2-5-71

Revised 7-1-14

1.An administrative hearing officer (AHO) does not have the authority to issue subpoenas for, or require the presence of, people individuals not employed by the Oklahoma Department of Human Services (DHS) or production of evidence at the hearing which that is not in the possession of DHS.

340:2-5-72. Hearing issue, standard of review, and burden of proof

Revised 7-1-14

(a) Hearing issue.The issue determined through the hearing process is whether the Oklahoma Department of Human Services (DHS) acted correctly in taking the action, or failed to act, which is the subject of the client's request for hearing.

(b) Standard of review. The administrative hearing officer (AHO) determines anew the relevant facts and applies the law to those facts.Therefore no No presumptions are made for or against DHS concerning the validity of the factual or legal basis for the action, or inaction, which is the subject matter of the hearing.

(c) Standard of proof.

(1) The standard of proof necessary to prove a fact is governed by state and federal law and regulations which are applicable to the subject matter of the hearing.

(2) If such law and regulations are silent, the standard of proof is a preponderance of the evidence.A preponderance of the evidence is that evidence which that, in light of the record as a whole, leads the AHO to believe a fact is more likely true than not true.

(d) Burden of proof.

(1) The burden of proof is governed by state and federal law and regulations which are applicable to the subject matter of the hearing.

(2) If When such law and regulations are silent, the party who seeks seeking to alter the status quo has the burden of proof.

(3) Examples of the burden of proof are shown in (A) and (B) of this paragraph.

(A) The burden of proof is on a client to show that:

(i) the applicant is eligible for Temporary Assistance to for Needy Families (TANF), the medical assistance, the food stamps Supplemental Nutrition Assistance Program (SNAP), or other DHS benefit programs, or the amount of benefits the applicant receives;

(ii) when seeking recertification for benefits, the recipient remains eligible for TANF, the Medical Assistance Program medical assistance, the Food Stamp Program SNAP, or other DHS benefit programs; or

(iii) an applicant is eligible for services through the Developmental Disabilities Services Division (DDSD).

(B) The burden of proof is on DHS to show that:

(i) during a period of certification, the recipient's TANF, medical assistance, food stamps SNAP, or other DHS program benefits should be reduced or terminated; or

(ii) during a DDSD plan of care, services should be reduced or terminated.

340:2-5-73. Hearing procedures

Revised 7-1-14

(a) Hearings.All hearings scheduled by the Appeals Unit are conducted by an administrative hearing officer (AHO), who:

(1) administers oaths;

(2) regulates and conducts the hearing in an orderly manner;

(3) ensures that all relevant issues are considered;

(4) rules on the admissibility of evidence;

(5) at his or her discretion, requests that written comments be submitted;

(6) if necessary for a client's case to be adequately presented, assists a client to present his or her case; and

(7) takes such action as the AHO deems necessary to reach a proper disposition of the case.

(b) Hearing location.

(1) It is solely within the discretion of the AHO whether to hold the hearing in person or by telephone.When in person, it is solely within the discretion of the AHO to designate the location in at which the hearing is held.

(2) If When the hearing is held in the local office and the AHO determines that the space provided for the hearing by the local office is inadequate, the local office provides other space which is acceptable to the AHO.

(c) Hearings are not open to the public.

(1) In order that the confidential nature of case material and the relationship between the client and the Oklahoma Department of Human Services (DHS) are maintained, hearings are not open to the public.

(2) No one other than the client, the authorized representative, and the DHS representative are permitted to attend the hearing, without permission of the AHO and the client.

(d) Failure to appear.

(1) If When an appropriate representative from the local office fails to appear, and the local office fails to show good cause, the AHO will proceed proceeds with the hearing, take taking evidence from the client, and issue issues a decision.

(2) Client failure to appear in:

(A) Food Stamp Supplemental Nutrition Assistance Program (SNAP) disqualification hearings, if a client fails to appear, a hearing must be held and a decision issued; and

(B) in all other cases, if a client fails to appear, and fails to show good cause, the AHO dismisses the hearing request.

(e) Pre-hearing conference.

(1) A conference may be conducted by the AHO immediately prior to the formal beginning of a hearing.The purpose of the pre-hearing conference is to reduce the actual amount of time spent in the hearing.In the pre-hearing conference the AHO identifies all:

(A) witnesses;

(B) exhibits; and

(C) issues to be covered in the hearing.; and

(2)(D) The pre-hearing conference is does not recorded record the conference.

(2) At the AHO's discretion, a pre-hearing conference may be held before the date of the hearing.

(A) The AHO notifies the parties of the date and time of the conference.

(B) The conference is not recorded.

(C) Based on the statements of the parties, the AHO determines the issues to address at the hearing.

(D) The AHO establishes dates for submission of the following:

(i) the DHS proposed exhibits, witness list, and Hearing Summary;

(ii) appealing party's proposed exhibits, witness list, and response to DHS Hearing Summary; and

(ii) the DHS reply to the appealing party's response.

(E) The AHO schedules a hearing date.

(F) The AHO issues a Scheduling Order.

(G) All documents must be mailed or emailed to the AHO with a copy to the opposing party.Documents must be received by the AHO and the opposing party on the date established by the AHO.

(f) Recording the hearing.

(1) The AHO is responsible for arranging for the hearing to be recorded.The hearing may be recorded electronically or by a certified court reporter.

(2) The AHO's recording of the hearing is the official recording.The client or authorized representative may provide his or her own recording device for use during the hearing if such recording is not disruptive.In no case is videotaping allowed.

(3) Upon written request to the Appeals Unit, DHS provides the client or authorized representative a copy of the:

(A) tape recording of the hearing.A transcript of the recording is provided only when required by federal or state law; or

(B) court reporter's transcript.

(g) Admonitions.

(1) When the hearing involves assistance, as defined at Section 161(g) of Title 56 of the Oklahoma Statutes (56 O.S. § 161(g)), all persons presenting evidence are advised of the provisions of Section 182 of Title 56 of the Oklahoma Statutes 56 O.S. § 182.

(2) When the hearing involves an applicant for or a recipient of the Medical Assistance Program, Children's Special Health Care Needs Services, State Supplemental Payment for the Aged, Blind, and Disabled, or Temporary Assistance for Needy Families, all persons presenting evidence are advised by the AHO of the provisions of Section 185 of Title 56 of the Oklahoma Statutes 56 O.S. § 185.

(3) If When the hearing involves Food Stamp Program SNAP, all individuals appearing to give testimony are advised by the AHO of the provisions of Section 243 of Title 56 of the Oklahoma Statutes 56 O.S. § 243.

(h) Oath for Witnesses.

(1) An oath is administered by the AHO to the client, witnesses witness(es), and the representative(s) of the local office.The following form is used for the oath, "Do you solemnly swear or affirm that the evidence you give in this case will be the truth, the whole truth, and nothing but the truth?"

(2) In hearings in which a client is assisted by an interpreter, the AHO will also administer administers an oath to the interpreter.The following form is used for the oath, "Do you solemnly swear or affirm that you will truthfully translate from English into (state the other language) the questions about to be asked, and from (state the other language) into English the answers about to be given in the case to the best of your ability?"

(i) Sequestration of witnesses.The AHO may require that any witness, other than the client, or authorized representative, and the local office representative, absent himself or herself from the hearing room except when the witness is testifying.

(j) Presentation of the case.

(1) Presentation of the case includes:

(A) participation in the pre-hearing conference;

(B) opening statements;

(C) calling witnesses;

(D) questioning witnesses;

(E) offering of non-testimonial evidence; and

(F) closing statements.

(2) Who presents the case? Case presentation.

(A) Presentation of the DHS case is made by the DHS employee most familiar with the issues. ¢1

(B) The client:

(i) may elect to present the case himself or herself; or

(ii) have an authorized representative present the case.

(3) The AHO directs the order of presentation of evidence. ¢2

(A) The AHO may call and/or examine witnesses to develop the record fully and to ensure all evidence favorable to an unrepresented client is presented.

(B) If during the hearing, the AHO determines that a party can submit evidence after the hearing, without the necessity of reconvening the hearing, the AHO sets forth the time and manner in which the evidence is submitted.

(4) When presentation of the evidence is complete, the AHO allows closing statements, with the party bearing the burden of proof going presenting last.

(k) Other AHO duties.

(1) When opinions of a subjective nature or expert opinions of a technical nature are relevant, the AHO elicits information which that indicates the competence of the persons making these statements.¢ 2

(2) If When the AHO determines that the client cannot adequately represent himself or herself, the AHO may continue the hearing and direct the local office to help the client obtain an authorized representative.

(l) AHO closing statement.

(1) If When the hearing is continued, the AHO explains the reason(s) for the continuance and the responsibilities to be carried out by the client and local office before the hearing is reconvened. The AHO is responsible for setting the date on which the hearing will be resumed and for notifying the client and the local office.

(2) If When the hearing is not continued, as soon as all pertinent evidence has been is presented, the parties are given an opportunity to make closing statements.

(3) Following closing statements by the parties, the AHO makes a closing statement in which he or she explains:

(A) that the Appeals Committee will make a decision in the case;

(B) the possible decisions that could may be reached;

(C) the decision is normally made within the following time periods, plus any delay caused by the client:

(i) 30 days for the Low Income Home Energy Assistance Program;

(ii) 60 days for the Food Stamp Program SNAP; and

(iii) 90 days in for all other cases;

(D) that a letter will be sent to the client, authorized representative, and local office by the AHO which that constitutes the decision; and

(E) the local office is responsible for taking whatever action is required to carry out the decision made on the client's hearing.

(m) Closing the hearing.The AHO closes the hearing.

INSTRUCTIONS TO STAFF 340:2-5-73

Revised 7-1-14

1.The employee most familiar with the issues is usually the employee who was most involved in the protested decision.If this person is not available, the person's supervisor presents the case.In some instances, such as Developmental Disabilities Services Division (DDSD) cases, it is more appropriate for another employee, such as a programs manager to present the case.

2.Order of presentation.

(1) The administrative hearing officer (AHO) will normally begin the presentation of evidence by asking for short statements from the representative of the local office and the client regarding the reason for appeal.The AHO may aid in development of these statements.

(2) The AHO makes a brief summary of these statements in order to define the point(s) at issue.

(3) The AHO explains:

(A) the testimony and other evidence presented by the representative of the local office must be is confined to the factual information and verifications used in reaching the decision made by the local office on the point(s) at issue; and

(B) any presentation by or on behalf of the client must be is related to the point(s) at issue.

(4) Evidence.

(A) The Oklahoma Department of Human Services (DHS) representative usually presents evidence first, including witnesses and non-testimonial evidence.

(B) The client presents evidence after the DHS presentation is completed.

(C) DHS may present rebuttal evidence, and the client surrebuttal, until both sides, in the judgment of the AHO, have adequately addressed all issues.

(D) Each party is given a reasonable time in which to complete its case.The hearing is not considered complete until both sides have been given a reasonable opportunity to present evidence and complete their arguments.

(E) The testimony of each witness is subject to appropriate cross-examination by the opposing party and questioning by the AHO.

2.For example, if when the point at issue has to do with the value of property, it is necessary to establish that the person giving evidence is qualified to do so.

340:2-5-74. Evidence

Revised 7-1-14

(a) General.

(1) Formal rules of evidence are not observed.

(2) Evidence is admitted if when it is the kind type of evidence upon which reasonable persons are accustomed to rely on in the conduct of serious affairs.

(3) Evidence which is reasonably construed as relevant and which is not otherwise unduly repetitious is admitted.Evidence which that is irrelevant or unduly repetitious may be excluded.

(4) The fact that evidence is admitted does not limit the authority of an administrative hearing officer (AHO) in determining the appropriate weight given such evidence.

(b) Specific evidentiary issues.

(1) Documentary evidence may be received in the form of copies or excerpts if the original is not readily available.Upon request, all parties are given an opportunity to compare the copy with the original.

(2) Evidence normally Information stored in electronic form may be printed and introduced as if the printed page was the original.Electronic evidence Electronically stored information includes, but is not limited to:

(A) Oklahoma Department of Human Services (DHS) records;

(B) e-mail email; and

(C) Internet pages.

(3) When all parties stipulate to a fact, the AHO officer may make a finding of fact on the basis of the stipulation.Signed statements by the parties or on-the-record oral statements by the parties are sufficient as stipulations.

(4) Judicial notice.

(A) Law.Judicial notice is taken by the AHO of the common law, constitutions, statutes, and administrative regulations in force in every state, territory, and jurisdiction of the United States.

(B) Facts.

(i) A judicially noticed adjudicative fact is not subject to reasonable dispute.It is either:

(I) generally known within the state; or

(II) capable of accurate and ready determination by reference to sources whose accuracy cannot reasonably be questioned.

(ii) An AHO may take judicial notice of a fact:

(I) if requested by a party and supplied with the necessary information; or

(II) on his or her own motion.

(C) Propriety.In determining the propriety of taking judicial notice of a matter:

(i) the AHO may consult and use any source of pertinent information, whether or not furnished by a party;

(ii) a party is entitled, upon timely request, to an opportunity to be heard as to the propriety of taking judicial notice and the scope of the matter noticed; and

(iii) judicial notice may be taken at any stage of the proceeding.

(5) Hearsay.

(A) Hearsay is evidence regarding a statement made outside of the hearing by a person not present at the hearing and which is offered to prove the truth of the statement.

(B) Hearsay evidence is not excluded because of its hearsay nature, but is admitted or excluded based upon the standards set forth below.

(C) Admissibility for admissibility and weight of hearsay evidence is explained in (i) - (iii) of this subparagraph.

(i) Generally, evidence is admissible if it is the kind type of evidence upon which reasonable persons are accustomed to rely on in the conduct of serious affairs.

(ii) Unlike judicial proceedings in which certain classes of hearsay evidence are automatically excluded due to concerns over the hearsay's reliability, no class of hearsay evidence is automatically excluded in administrative proceedings.

(iii) Once hearsay evidence has been is admitted, it is still necessary for the AHO to decide what weight should be is given to the evidence.¢ 1

(D) Even if When hearsay evidence is admitted and accorded great weight, an administrative decision may not be based solely on hearsay.

INSTRUCTIONS TO STAFF 340:2-5-74

Revised

1.Weight of evidence.

(1) Evidence, although admissible, may not be very persuasive relevant to other evidence.

(2) On the other hand, that same The evidence might may not be very "weighty" by itself, but may corroborate other evidence on a particular point and make the evidence on that point highly persuasive.

(3) It is not necessary to separately assign value to each item of evidence, but rather such evidence is considered in the context of all evidence received.

(4) Caution is exercised in both the decision to admit hearsay and as to in determining the weight accorded to such evidence.There can be great variation among different hearsay evidence.For example, a medical conclusion found in a well-known medical text is likely more reliable than a second- or third-hand version of a given fact.

340-2-5-75. Reopened hearings

Revised 7-1-14

(a) If, following a hearing at which a decision was not pronounced, the administrative hearing officer (AHO) determines that the evidence presented in the hearing was so inadequate that a decision cannot be made, the hearing is reopened and further information requested.

(1) When it is necessary to reopen a hearing, the AHO sends the client, authorized representative, and the local office a letter which clearly states stating:

(A) what evidence is to be submitted;

(B) who will submit submits the evidence;

(C) a deadline for submission;

(D) the manner in which the evidence is submitted; and

(E) the deadline for the opposing party to submit comments regarding the evidence or to request that the hearing be reconvened.

(2) The client is expected to cooperate in any way necessary to obtain the desired information and failure to do so without good cause may result in the dismissal of the hearing request.

(b) If When the hearing is reopened for the purpose of obtaining additional medical information, the needed examination is arranged in the usual manner.

(1) If When the examination is authorized by a local office, that the office routes the original of the completed report to the Appeals Unit and the client or authorized representative.

(2) If When the examination is authorized at the by State Office, all copies of the completed report are forwarded to the Appeals Unit by the division or unit which that authorized the examination.The Appeals Unit sends a copy of the completed report to the local requesting office in which the appeal was requested and to the client.

(c) The AHO may make a referral to another unit or division, or request the local office to obtain the needed information.

(d) Following receipt of additional information, the AHO informs the client, authorized representative, and local office in writing of:

(1) the additional evidence obtained;

(2) the source of the additional evidence;

(3) how the evidence relates to the issues; and

(4) that either party may ask that the hearing be reconvened, but the AHO is not required to grant the request.

340:2-5-76. Hearing decision

Revised 7-1-14

(a) The Appeals Committee.

(1) The Appeals Committee makes the hearing decision.

(2) Unless otherwise designated by the Director of the Department of Human Services (DHS), the Appeals Committee consists of the:

(A) administrative hearing officer (AHO) who presided over the hearing;

(B) director of the DHS division which administers the program which was the subject of the hearing.The division director may delegate this responsibility to someone in the division at the level of programs administrator; and

(C) Appeals Unit supervisor.

(3) No member of the Appeals Committee may obtain information about the case from outside the hearing record.

(4) Any member of the Appeals Committee who was involved in making the decision which is the subject of appeal disqualifies himself or herself from participation.

(A) A division director or programs administrator appoints an appropriate substitute from within the division or, if an appropriate substitute is not available within the division, a substitute is appointed by the Appeals Unit supervisor.

(B) The Appeals Unit supervisor appoints a substitute for himself or herself from the Legal Division.

(b) Legal and factual basis of the decision.

(1) The factual basis of the decision is the information that was available to the Oklahoma Department of Human Services (DHS) on the date of the decision and, if DHS failed to follow its own rules regarding the gathering of information, the information that would have been available to DHS at the time of the decision had the rules been followed.This information is obtained through:

(A) hearing testimony;

(B) exhibits introduced at the hearing; and

(C) facts or law of which the AHO has taken judicial notice.

(2) The law applied to the case is described in (A) - (C) of this paragraph.

(A) The relevant sections Sections of the Oklahoma Administrative Code (OAC) are applied.

(B) Where the OAC is ambiguous or silent on a point critical to the decision, reference to other sources, including state and federal statues, federal regulations, sub-regulatory material, and case law is appropriate. ¢ 1

(C) No sections Section of the OAC shall be is declared invalid.However, if the validity of any sections Section of the OAC is raised as an issue, the AHO permits arguments concerning that the issue so that the issue it is preserved for subsequent review.

(c) Making the decision.

(1) Following the hearing, the AHO reviews the evidence and applicable law.

(2) If the AHO concludes that DHS acted correctly, the AHO issues a hearing written decision letter on behalf of the Appeals Committee.

(3) If the AHO concludes that DHS acted incorrectly, the AHO refers the case to the other members of the Appeals Committee.

(A) The AHO prepares a:

(i) summary of the hearing, which includes the AHO's findings of fact.The findings of fact are binding on each member of the Appeals Committee; and

(ii) vote sheet, which contains containing the AHO’s vote and the reasoning supporting the vote.

(B) The AHO sends the summary, vote sheet, and Appeals Unit file to the member of the Appeals Committee from the affected division, who reviews the summary and Appeals Unit file prior to voting.

(C) If the vote from the division member is:

(i) favorable to the client, the file is returned to the AHO to issue a decision; or

(ii) unfavorable to the client, the file is sent to the Appeals Unit supervisor to review and vote.

(D) Following the vote by the Appeals Unit supervisor, the file is returned to the AHO to issue a decision in accord with the majority vote of the Appeals Committee.

(d) The Appeals Committee may make a decision:

(1) completely favorable to the client;

(2) partially favorable to the client;

(3) completely unfavorable to the client;

(4) dismissing the hearing request because of client withdrawal or abandonment; or

(5) dismissing the hearing request because the hearing request does not relate to an appealable issue;

(6) to hold a supplemental hearing; or

(7) direct one, or both parties to obtain and submit additional information.

(e) The Appeals Committee decision must contain:

(1) a sufficient explanation of the issues, evidence, findings of fact, and law which are sufficient to inform the parties of the basis for the decision; ¢ 2 and

(2) appeal rights, the action required to appeal, and the time within which such action must be taken.

(f) The Appeals Committee decision is sent to:

(1) the client;

(2) the authorized representative, if any;

(3) the local office;

(4) the DHS State Office programs manager of the program most affected by the decision;

(5) any other DHS component of DHS which is components necessary for implementation of the decision; and

(6) any other DHS component of DHS which components the AHO or Appeals Unit supervisor chooses to notify.

INSTRUCTIONS TO STAFF 340:2-5-76

Revised 7-1-14

1.When the Appeals Committee relies upon sources of law other than Oklahoma Department of Human Services (DHS) regulations, the written decision indicates the source of the law upon which the administrative hearing officer (AHO) relied and the reasons for that reliance.

2.A hearing decision normally contains:

(1) the date and place of the hearing;

(2) the hearing participants;

(3) a clear and precise statement of the:

(A) issues; and

(B) specific points which must be resolved to decide the case;

(4) a listing of all the material placed into evidence at the hearing, upon which the hearing decision is based;

(5) a summary of the pertinent evidence;

(6) the findings of fact, which are sufficient to apprise the parties of the basis for the decision;

(7) a clear and precise statement of the decision;

(8) a clear explanation of the reasoning underlying the decision, including specific references to applicable regulations, statutes, cases, or other authority;

(9) when applicable:

(A) the amount of benefit, or that the local office will make a determination of the amount of benefit; and

(B) that the sustained decision implies nothing as to current or continuing eligibility and that further determination of eligibility is required to establish current eligibility when testimony reveals changes have occurred subsequent to the protested action, which might affect a decision regarding the client's current eligibility; and

(10) in cases where the parties have mutually agreed to the outcome of a hearing the content of the decision need not include all of the information set forth above.Any such decision, however, states with clarity:

(A) the identity of the parties involved;

(B) the subject matter of the decision;

(C) the results of the agreed decision; and

(D) a determination that the result is in accordance with applicable law.

340:2-5-78. Administrative disqualification hearings

Revised 7-1-14

(a) Administrative disqualification hearings. An administrative disqualification hearing is initiated by the Oklahoma Department of Human Services (DHS) when the facts of the individual Food Stamp Supplemental Nutrition Assistance Program (SNAP) or Temporary Assistance to for Needy Families (TANF) case indicate that an intentional program violation may have occurred.

(b) Definition of intentional program violation.

(1) Food Stamp Program SNAP.An intentional program violation consists of a client intentionally:

(A) making a false or misleading statement;

(B) misrepresenting, concealing, or withholding facts; or

(C) committing any act that constitutes a violation of the Food Stamp Act; the Food Stamp Program SNAP regulations; or any Oklahoma law or regulation laws or regulations relating to the use, presentation, transfer, acquisition, receipt, or possession of food stamp coupons, authorization to participate (ATP) document, or electronic benefit transfer (EBT) cards.

(2) TANF.An intentional program violation occurs when an individual, for the purpose of establishing or maintaining the household's eligibility for TANF or for increasing or preventing a reduction in the amount of the grant, intentionally:

(A) makes a false or misleading statement or misrepresentation, concealment, or withholding of facts;

(B) performs any act intended to mislead, misrepresent, or conceal;

(C) withholds facts; or

(D) offers or proposes a falsity.

(c) Consolidation of administrative disqualification hearing with administrative hearing.DHS may combine an administrative hearing and an administrative disqualification hearing into a single hearing if when the factual issues arise out of the same, or related circumstances and the household receives prior notice that the hearings will be combined.If the disqualification hearing and administrative hearing are combined:

(1) DHS follows the time frame for conducting disqualification hearings;¢ 1 and

(2) the household loses its right to an additional administrative hearing on the existence or amount of the overpayment if when the combined hearing addressed the overpayment amount.

(d) Advance notice of hearing.DHS sends a written notice to the household member suspected of an intentional program violation by first class mail at least 30 days in advance of the scheduled date of a disqualification hearing.The household may waive the 30-day advance notice if an administrative hearing and disqualification hearing are combined.¢ 2

(e) Failure to appear at the hearing.

(1) If the household member suspected of an intentional program violation or its representative cannot be located or fails to appear at the hearing initiated by DHS initiated hearing without good cause, the hearing is conducted without the household member present.

(2) Even though the household member suspected of an intentional program violation is not present, the administrative hearing officer (AHO) is required to carefully consider the evidence and determine if an intentional program violation was committed.In the event of an adverse decision against the client, the client may demonstrate to the AHO good cause for failure to appear.If good cause is shown, the adverse decision is rescinded and another hearing scheduled.

(f) Waiver of hearing.DHS provides the accused household member(s) the option of signing a waiver for an administrative disqualification hearing.¢ 3

(g) Postponement of hearing.

(1) The household member or representative is entitled to a postponement of a scheduled Food Stamp Program SNAP hearing, provided that the request for the postponement is made at least ten 10 days in advance of the scheduled hearing.

(2) The local office notifies the Appeals Unit, if a postponement is requested.

(h) Right to refuse to answer questions.At an administrative disqualification hearing, the AHO advises the household member(s) or representative that they have the right to remain silent and that anything said, or signed, may be used against them in a court of law.

(i) Criteria for determining intentional program violation.The AHO bases the determination of intentional program violation on clear and convincing evidence which that demonstrates that the household member(s) committed an intentional program violation, as defined in this Section.

(j) Time limit for decision.Within 90 days of the date on the notice of hearing the household member is notified in writing of the decision. However, if the hearing has been postponed at the request of the household member suspected of an intentional program violation, the time limit is extended for as many days as the hearing was postponed.¢ 4

(k) Further appeal.

(1) No further administrative appeal procedure exists after an individual waives his or her right to an administrative disqualification hearing or is determined by an AHO to have committed an intentional program violation by an AHO.

(2) The disqualification penalty cannot be changed by a subsequent administrative hearing decision.

INSTRUCTIONS TO STAFF340:2-5-78

Revised 7-1-14

1.This does not mean that a client who failed to timely appeal a notice of overpayment may contest the existence or amount of the overpayment at an administrative disqualification hearing.In order for a client to contest the existence or amount of an overpayment, the client must timely request a hearing following receipt of the notice of overpayment.

2.The notice contains:

(1) the date, time, and place of the hearing;

(2) the charge(s) against the household member;

(3) a summary of the evidence, and how and where the evidence can be examined;

(4) a warning that the decision will be is based solely on information provided by the local office if the household fails to appear at the hearing;

(5) a statement that the household member or representative has ten 10 days from the date of the scheduled hearing to present "good cause" for failure to appear in order to receive a new hearing;

(6) a warning that a determination of an intentional program violation will result results in a 12-month disqualification for the first violation, 24-month disqualification for the second violation, and permanent disqualification for the third violation, and a statement of which penalty the Oklahoma Department of Human Services (DHS) believes is applicable to the case scheduled for the hearing;

(7) the household member or its representative's rights, which include:

(A) an adequate opportunity to examine the entire case file, except confidential information.Examples of confidential information include names of individuals who have disclosed information about the household without its knowledge or the nature of the status of pending criminal prosecutions.Such information is not introduced at the hearing or considered by the administrative hearing officer (AHO);

(B) upon request, DHS provides the household or its representative a free copy of any documents or records in the case file pertaining to the disqualification hearing;

(C) the right to present the case himself or herself or by authorized representative;

(D) the right to bring witnesses;

(E) the right to advance arguments without undue interference;

(F) the right to question or refute any testimony or evidence including an opportunity to confront and cross examine adverse witnesses;

(G) the right to submit evidence to establish all pertinent facts and circumstances in the case;

(H) the right to remain silent concerning the charge(s), and that anything said or signed by the individual(s) concerning the charge(s) can be used against him or her in a court of law; and

(I) the right to waive his or her right to an administrative disqualification hearing by signing a waiver which will result results in disqualification and a reduction in benefits for the period of disqualification, even if when the individual(s) individual does not admit to the facts as presented by DHS;

(8) a statement that the hearing does not preclude the state or federal government from prosecuting the household member for an intentional program violation in a civil or criminal court action, or from collecting the overissuance; and

(9) a statement advising the household member(s) to contact the local office to determine whether or not free legal services are available.

3.The waiver, Form H-S-13-A 08OP016E, Administrative Disqualification Hearing Waiver, is attached to Form FSP-S-18, Notification of Food Stamp Overpayment 08AD019E, Program Penalty/Disqualification Notice, and/or Form ADM-S-20, computer-generated Notification of TANF Overpayment, mailed to the household by the Overpayment Unit.Form H-S-13-A 08OP016E:

(1) contains a statement that the accused individual(s) has the right to remain silent concerning the charge(s), and that anything said or signed by the individual concerning the charge(s) can be used against him or her in a court of law;

(2) states that a waiver of the disqualification hearing will result results in disqualification and a reduction in benefits for the period of disqualification, even if the accused individual does not admit to the facts as presented by DHS;

(3) asks the accused individual to specify whether or not he or she admits to the facts as presented by DHS.The options of the household member(s) are is to:

(A) admit to the facts as presented and to understand that a disqualification penalty will be imposed if the waiver is signed; or

(B) not admit to the facts as presented.However, he or she may choose to sign the waiver and understand that a disqualification penalty will result;

(4) the telephone number of the Overpayment Unit phone number to call in event the accused household member(s) desires additional information; and

(5) the fact that the remaining household members, if any, will be are held responsible for repayment of the resulting claim.

4.After a decision is rendered regarding an intentional program violation, the individual or household member is notified in writing.A copy of the decision letter is mailed to the local office and the Overpayment Unit.

340:2-5-80. Director review of administrative hearing officer (AHO) decision

Revised 7-1-14

With the exception of administrative disqualification hearings, the decision of the Appeals Committee is subject to review by the Department Director of Human Services (DHS) (Director) pursuant to or the Director's designee per Section 168 of Title 56 of the Oklahoma Statutes.

(1) Requests for review of an Appeals Committee decision may be made by a client or authorized representative if when a written request for review is received by DHS within 30 days from the date of the AHO Administrative Hearing Officer decision letter.Benefits are not continued or reinstated during the pendency of the review.

(2) Request for review of an Appeals Committee decision may be made by the director of the DHS division that completed the action appealed.

(A) The authority to request review may be delegated when the division director is unable to make the request due to absence or illness.

(B) The request must be made in writing and received by the Appeals Unit or Director within 10 business days of the date of the hearing decision.

(C) On receipt of a request for review by the Director, the Appeals Unit immediately notifies the client of the request for review, with a copy of the request attached. The notice includes:

(i) a statement that the client may submit documents and written comments within 10 business days;

(ii) the hearing decision is implemented immediately unless the client wishes to maintain the pre-hearing status quo until the Director issues a decision; and

(iii) when the hearing decision has already been implemented, implementation is not undone unless the client wants to maintain the pre-hearing status quo until the Director issues a decision.

(D) The decision of the Director, or designee is issued within 10 business days of the earlier of receipt of the client's comments or running of the deadline for client comments.

340:2-5-81. General authority of the appeals unit supervisor and administrative hearing officer

Issued 7-1-14

(a) An administrative hearing officer (AHO) has the authority to:

(1) alter any requirement or procedure set forth in Oklahoma Administrative Code (OAC) 340:2-5-60 through 340:2-5-80 when necessary to provide due process to a client or give the client and the Oklahoma Department of Human Services (DHS) an adequate opportunity to present evidence and argument regarding issues relevant to the action being appealed.However, the AHO may not take an action that violates state or federal constitutions, statutes, or regulations;

(2) take appropriate action regarding any situation not addressed in OAC 340:2-5-60 through 340:2-5-80; and

(3) take any action necessary to provide a fair process for resolution of an appeal. However, the AHO may not take an action that violates the state or federal constitutions, statutes, or regulations.

(b) The appeals unit supervisor has the authority to:

(1) in case of absence or unavailability of the assigned AHO, make decisions regarding administrative issues in a case including, but not limited to, the granting of a request for continuance of a hearing or the determination of timeliness of a hearing request; and

(2) make any decision necessary to provide a fair process for resolution of an appeal.This may include the direction of an AHO to take, or not take, a specific action.However, the appeals unit supervisor may not take an action that violates state or federal constitutions, statutes, or regulations.

(c) The appeals unit supervisor may not direct the AHO to take, or not take, action regarding the merits of a case.

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