465 Neb. Admin. Code, ch. 2, § 005

Current through September 17, 2024

Section 465-2-005 - DISQUALIFICATION HEARING OFFICIAL

Hearings will be conducted by an impartial official who: Does not have any personal stake or involvement in the case; was not directly involved in the initial determination of the action which is being contested; and was not the immediate supervisor of the person who took the action that is the subject of the hearing. The hearing official will be either an employee of the Department or an individual under contract with the Department.

005.01DISQUALIFICATION GUIDELINES. The following apply to disqualification proceedings:

(A) A disqualification hearing may be initiated regardless of the current eligibility status of the individual;

(B) The burden of proving intentional program violations is on the Department; and

(C) A disqualification hearing will not be initiated against an accused individual whose case is currently being referred for prosecution or after any action taken against the accused individual by a court, if the factual issues of the case arise out of the same, or related, circumstances.

005.02TIMELINESS STANDARDS. The following timeliness standards apply in the disqualification hearing process:

(A) The individual suspected of intentional program violations will be given at least 30 days' written advance notice of the hearing unless the individual requests a waiver of the advance notice in situations when the disqualification and fair hearings are combined.

(B) Within 90 days from the date the accused individual is notified of the hearing the Department will:

(i) Conduct the hearing;

(ii) Arrive at a decision;

(iii) Notify the individual of the decision; and

(iv) Take administrative action to implement the decision.

005.03SCHEDULING OF HEARINGS. The following apply to disqualification hearings:

(A) The individual or representative is entitled to a postponement of the scheduled hearing, provided that the request for postponement is made at least 10 days in advance of the date of the scheduled hearing. The hearing shall not be postponed for more than a total of 30 days and the Department may limit the number of postponements to one. If the hearing is postponed, the time limits for conducting a hearing, reaching a decision, and notifying the individual of the decision shall be extended for as many days as the hearing is postponed.

(B) If the individual or individual's representative cannot be located or fails to appear at a hearing without good cause, the hearing will be conducted without representation for the individual. Even though the individual is not represented, the hearing official will carefully consider the evidence and determine if an intentional program violation was committed based on clear and convincing evidence.

(C) If the individual is found to have committed an intentional program violation but it is later determined that the individual had good cause for not appearing, the previous decision will no longer remain valid and the Department will conduct a new hearing.

(D) In instances where good cause for failure to appear is based upon a showing of nonreceipt of the hearing notice, the individual has 30 days after the date of the written notice of the hearing decision to claim good cause for failure to appear. In all other instances, the individual has 10 days from the date of the scheduled hearing to present reasons showing good cause for failure to appear. The good cause decision will be entered into the record.

005.04CONSOLIDATED HEARINGS. A disqualification hearing may be combined with a fair hearing when the factual issues of both hearings arise out of the same or related circumstances and the individual is notified in advance that the hearings will be combined in a single hearing.

005.04(A)TIMELINESS STANDARDS. If a disqualification hearing and a fair hearing are combined, the timeliness standards for disqualification hearings apply.

005.04(B)OVERPAYMENTS. If the hearings are combined for the purpose of settling an overpayment amount and determining if an intentional program violation has occurred, the individual loses the right to a later fair hearing on the overpayment amount. The individual may waive the 30-day advance notice period when the disqualification hearing and fair hearing are combined.

005.05NOTICE OF THE OPTION TO WAIVE HEARING. The Department will provide written notification to the individual suspected of an intentional program violation that the individual can waive the right to an administrative disqualification hearing. Prior to providing this written notification, the Department will review the evidence against the individual by someone other than the eligibility worker assigned to the accused individual's household to verify that such evidence warrants scheduling a disqualification hearing. The notification will be provided in a manner consistent with 7 CFR § 273.16.

005.06WAIVED HEARINGS. If the individual wishes to waive a hearing, the Department will send a waiver of hearing consent form. If the waiver form is returned by the deadline specified on the waiver form, the individual will be disqualified in accordance with the disqualification periods specified in the regulations for the assistance program for which the intentional program violation is alleged.

005.07PARTICIPATION WHILE AWAITING A HEARING. A pending disqualification hearing does not affect the right of the individual or the household to continue to receive assistance. Eligibility will be determined in the same manner it would be determined for any other household until there is a determination that the individual has committed an intentional program violation.

005.07(A)CONTINUATION OF ASSISTANCE. If the misstatement or action that is the basis of the alleged violation does not affect the individual's current circumstances, the individual would continue to receive assistance based on the latest program eligibility determination or be redetermined based on a new application and the current circumstances. Benefits will be terminated if the certification period has expired and the household, after receiving its notice of expiration, fails to reapply.

005.07(B)TERMINATION OF ASSISTANCE. The individual's or household's benefits will be reduced or terminated if there is documentation which substantiates ineligibility or eligibility for reduced benefits and the household fails to request a fair hearing and continuation of benefits pending the hearing. These actions occur even if the documented facts led to the suspicion of an intentional program violation and the resulting disqualification hearing.

005.08HEARING OFFICIAL POWERS AND DUTIES. In fair hearings and disqualification hearings the hearing official will:

(A) Consider all relevant issues;

(B) Administer oaths;

(C) Request, receive and make part of the record all evidence determined necessary to decide the issues being raised;

(D) Regulate the conduct and course of the hearing in accordance with due process and keep the hearing orderly;

(E) Provide a hearing record and recommendation for final decision by the Chief Executive Officer or delegated final decision maker; and

(F) At the hearing officer's discretion:

(i) Ask for additional witnesses and question witnesses;

(ii) Ask that additional evidence be presented;

(iii) Dismiss witnesses from the room for good and sufficient reason;

(iv) Recess, continue, or close the hearing at any time there is good and sufficient reason for so doing; and

(v) Order, where relevant and useful, an independent medical assessment or professional evaluation from a source mutually satisfactory to the household and the Department.

005.09HEARING DECISION AUTHORITY. Unless delegated according to state statute or regulation, the power to make the final disqualification hearing decision is vested in the Chief Executive Officer.

005.10CONDUCT OF THE HEARING. Disqualification hearings are conducted by the hearing official as informal hearings, but witnesses will be placed under oath.

005.10(A)ATTENDANCE AT THE HEARING. The hearing will be attended by a representative of the Department. If the suspected individual fails to appear, the decision of the Department regarding the intentional program violation will be based solely on information provided by the Department.

005.10(B) ORDER OF THE HEARING. The hearing will begin with introductions by the hearing official. The hearing official will advise the suspected individual or representative that the suspected individual may refuse to answer questions during the hearing. The Department's representative will present the state's case first. The suspected individual or the representative will then present the individual's case.

005.11HEARING DECISION. The following apply to hearing decisions:

005.11(A)CRITERIA FOR DETERMINING INTENTIONAL PROGRAM VIOLATION. The determination of an intentional program violation must be based on clear and convincing evidence which demonstrates that the individual knowingly, willfully and with deceitful intent committed an intentional program violation.

005.11(B)DECISION FORMAT. On the basis of the evidence presented, a final decision will be entered which:

(i) Specifies the reasons for the decision;

(ii) Identifies the supporting evidence;

(iii) Identifies the pertinent program regulation; and

(iv) Responds to reasoned arguments made by the individual or representative.

005.12APPEAL RIGHTS. No further administrative appeal procedure exists after a hearing decision is made which is adverse to the individual. A determination of intentional program violation cannot be reversed by a subsequent fair hearing decision on the same level.

465 Neb. Admin. Code, ch. 2, § 005

Amended effective 9/17/2024