16 Del. Admin. Code § 5000-5305

Current through Register Vol. 28, No. 7, January 1, 2025

Section 5000-5305 - Limiting the Amount of Time to Request a Hearing

7 CFR 273.15(g), 42 CFR 431.221, 45 CFR 205.10, 42 CFR 438.408(f)

This policy applies any time an applicant or recipient of any program managed or administered by DSS or DMMA requests a fair hearing.

1. Hearing Office Staff Determine Timely Requests

An appeal (hearing request) is filed when it is received and filed in the Division's hearing office, not at the moment it is placed in the mail. Staff taking oral requests will assure the appeal is filed within the time frames in this section. Timely requests are determined based on four time periods:

A. Within the timely notice period

B. Within 90 days from the effective date of action

C. More than 90 days from the effective date of action

D. For Food Supplement Program households, at any time within a certification period,

E. For recipients enrolled in a MCO, 120 days from the date of the MCO's notice of resolution of the appeal or the MCO's failure to adhere to the notice and timing requirements in 42 CFR 438.408.

A. Timely Notice Period

Requests made during the timely notice period are timely. The timely notice period is the ten (10) day period between the dates a notice is mailed to the date a proposed action is to take effect. It is also called Advance Notice Period.

Staff will not reduce or terminate benefits pending a decision on the appeal if a request for a hearing is filed within the timely notice period.

Exception: Benefits may be reduced or terminated if the conditions in DSSM 5308 are met.

B. Ninety Days from the Effective Date of Action

A hearing is granted if the request is received within 90 days from the effective date of action. If the request is not received during the timely notice period, the proposed action must take effect.

C. More than Ninety Days from the Effective Date of Action

The hearing officer does not have authority to hear an appeal that is filed more than 90 days from the effective date of action. The hearing officer does not have authority to extend the time period beyond 90 days of the effective date of action.

D. Food Supplement Program Households

At any time within a certification period, a Food Supplement Program household may request a hearing to dispute its current level of benefits.

E. Recipients enrolled in a MCO

A hearing is granted if the request is received within 120 calendar days from the date of the MCO's notice of an appeal resolution upholding an adverse benefit determination. If the request is not received during the timely notice period, the adverse benefit determination is to take effect. If the MCO fails to adhere to the notice and timing requirements in 42 CFR 438.408, the recipient is deemed to have exhausted the MCO's appeals process and may initiate a State fair hearing within 120 calendar days.

16 Del. Admin. Code § 5000-5305

15 DE Reg. 86 (07/01/11)
21 DE Reg. 568( 1/1/2018) (Final)