Section 475-1-006 - FAIR HEARINGSThe Department provides a fair hearing to a household that wishes to appeal a Department action or inaction that affects the household's participation, unless the action is not appealable. Actions that are not appealable include actions that reduce, suspend, or cancel benefits program-wide, mass changes that affect the Supplemental Nutrition Assistance Program benefit level, or allotment reductions for failure to pay an outstanding accounts receivable.
006.01NOTIFICATION OF RIGHT TO APPEAL. The following applies to notifying households of their right to appeal. 006.01(A)AT TIME OF APPLICATION. At the time of application, the household is informed in writing of the following: (i) The right to request a fair hearing;(ii) The method of requesting a fair hearing; and(iii) That the household may have its case presented at a fair hearing by: (1) A household member; or(2) Any representative chosen by the household.006.01(B)OTHER CIRCUMSTANCES. When a household disagrees with the Department regarding action affecting the household's eligibility, the Department: (i) Informs the household of its right to request a fair hearing;(ii) Refers the household to any free legal representation or a legal referral service; and(iii) Offers the household an agency conference.006.02REQUESTS FOR HEARING. Any request for a hearing must be made verbally or in writing by the household or its representative on any appealable action which occurred within the past 90 days. A request for a hearing is defined as a clear expression, oral or written, by the household or its representative that it wishes to appeal a decision. The Department does not limit or interfere in any way with the household's freedom to request a hearing. 006.02(A)VERBAL REQUESTS. If a verbal request is received, the Department will request that the household submit a written request and help the household with the written request if the household requires assistance. If a household makes an oral request and does not submit a written request for a hearing, the Department will complete the procedures necessary to start the hearing process.006.02(B)APPEALABLE ACTION. Appealable action by the Department includes a denial of a request for restoration of benefits lost more than 90 days but less than a year before the request for restoration. A household may request a fair hearing at any time within its certification period to dispute its current level of benefits.006.02(C)REQUEST FOR EXPEDITED HEARING. Expedited hearing requests will be granted to households, such as migrant farm workers, which plan to move from the jurisdiction of the Department before the hearing decision would normally be reached. Hearing requests from these households will be given priority in processing.006.02(D)VOLUNTARY WITHDRAWAL REQUEST FOR A FAIR HEARING. The household may withdraw a fair hearing request, orally or in writing, any time before a determination of the fair hearing is made. 006.02(D)(i)VERBAL WITHDRAWAL. If the withdrawal request is made verbally, the Central Office will provide written notice to the household within ten days of the household's request to withdraw, confirming the withdrawal request and providing the household an opportunity to request another hearing if desired. A household is allowed one reinstated fair hearing per appeal.006.02(D)(ii)COERCION. Coercion or actions which would influence the household or its representative to withdraw the household's fair hearing request are prohibited.006.02(D)(iii)HOUSEHOLD'S PARTY TO ANOTHER ACTION. A household's request for a fair hearing will not be denied even if the household is a party to another action that differs from the reinstated action.006.02(E)REQUEST FOR POSTPONEMENT. A household may request a postponement of the scheduled hearing. This postponement will not exceed 30 days; and the time limit for action on the decision may be extended for as many days as the hearing is postponed. The individual is entitled to one postponement of the individual's fair hearing upon a showing of good cause. The individual is entitled to a second postponement of individual's fair hearing only upon a showing of exceptional good cause. Fair hearing may be postponed only at the request of, or with the consent of, the individual.006.02(F)DENIAL OR DISMISSAL OF REQUEST. The Department will not deny or dismiss a request for a hearing unless: (i) The request is not received within the specified time limit;(ii) The request is withdrawn, in writing or orally, by the household or its representative;(iii) The household or its representative fails, without good cause, to appear at the scheduled hearing; or(iv) The action the household requests to appeal is non-appealable.006.02(G)CONTINUATION OF BENEFITS. If a hearing request is made within the notice of adverse action period and the household's certification period has not expired, participation will be continued at the same level of benefits, unless the household waives continuation of benefits. If the household does not waive its right to continuation of benefits in writing, the Department will assume the household wishes benefits to continue and will issue the benefits accordingly. 006.02(G)(i)CLAIMS AFTER CONTINUANCE. If the Department action is upheld by the hearing decision, the Department will initiate a claim against the household for all overpayments.006.02(G)(ii)REQUESTS NOT MADE WITHIN TEN DAYS. If a hearing request is not made within ten days from the date the notice was mailed, the Department will reduce or terminate benefits as provided in the notice. If the Department determines that the household has good cause for failure to make the request within the required time limits, the Department will reinstate the benefits at the level previous to the notice of adverse action being sent.006.02(G)(iii)REDUCTION DUE TO MASS CHANGES. When benefits are reduced or terminated due to a mass change, the Department will reinstate the household's benefits to the previous level only if the household contests the computation of the Supplemental Nutrition Assistance Program eligibility or benefit level, or the application or interpretation of the federal law or regulation.006.02(G)(iv)REDUCTION AND TERMINATION AFTER CONTINUANCE. Once benefits are continued or reinstated, the Department will not reduce or terminate benefits before the hearing decision unless one of the following conditions occurs: (a) The certification period expires. The household may reapply and may be determined eligible for a new certification period with a benefit amount determined by the Department;(b) The household or its representative orally withdraws its request for a fair hearing and does not advise the agency of its desire to reinstate the fair hearing request within the required time frame;(c) The hearing official makes a preliminary determination, in writing and at the hearing, that the sole issue is one of federal law or regulation and that the household's claim that the Department improperly computed the benefits or misinterpreted or misapplied such law or regulation is invalid;(d) A change affecting the household's eligibility or basis of issuance occurs while the hearing decision is pending and the household fails to request a hearing after the subsequent notice of adverse action; or(e) A mass change affecting the eligibility or basis of issuance occurs. 006.02(G)(iv)(1)NOTIFICATION OF REDUCTION OR TERMINATION. The Department will promptly notify the household in writing if benefits are reduced or terminated pending the fair hearing decision.006.03HEARING PROCESS. Within 60 days of the Department's receipt of a fair hearing request: (1) The hearing will be conducted;(2) A decision will be reached; and(3) The household and Department must be notified of the hearing decision by an order. 006.03(A)WRITTEN NOTICE. The Department will provide all persons involved with a written notice at least ten days before the Fair Hearing. The notice will: (i) Advise the household or its representative of the name, address, and phone number of a contact person; (ii) Specify that the Hearing Office will dismiss the hearing request if the household or its representative fails to appear for the hearing without good cause;(iii) Include the Hearing Office's hearing procedures and any other information that would provide the household with an understanding of the proceedings and that would contribute to the effective presentation of the household's case; and(iv) Explain that the household or representative may examine the case file before the hearing.006.03(B)INFORMATION FROM THE DEPARTMENT. Upon request, the Department will make available, without charge, the specific materials necessary for a household or its representative to determine whether a hearing should be requested or to prepare for a hearing. If the individual making the hearing request does not speak English and the Department employs bilingual staff or interpreters, the hearing procedures will be verbally explained in that language. The Department will advise households of any legal services available that may provide representation at the hearing. The Department will make available clearly written rules of procedure to any interested person. The rules of procedure include: (i) Time limits for a hearing request;(ii) Advance notification requirements;(iii) Timeliness standards; and(iv) Rights and responsibilities of persons requesting a hearing.006.03(C)HEARING OFFICER. The hearing officer will make recommendations for final administrative decisions.006.03(D)HOUSEHOLD HEARING ATTENDANCE. A fair hearing must be attended by a representative of the Department and the household, its representative, or both. 006.03(D)(i)FRIENDS AND RELATIVES. Friends and relatives of the household may attend the hearing, if the household so chooses. The hearing officer has the authority to limit the number of persons in attendance at the hearing if space is limited.006.03(D)(ii)INDIVIDUALS APPEARING ON BEHALF OF THE HOUSEHOLD. Any person appearing on the household's behalf may appear by telephone, in person at the location of the hearing officer, or by telephone or video conference from a local office that is more accessible to the person.006.03(D)(iii)PERSON'S ACCUSED OF INTENTIONAL PROGRAM VIOLATIONS. A person accused of an intentional program violation is not required to attend the individual's administrative disqualification hearing or to send a representative.006.03(E)HOUSEHOLD RIGHTS. The household or its representative will be given the opportunity to take any or all of the following actions: (i) The household or its representative is entitled to examine all documents and records to be used at the hearing at a reasonable time before the date of the hearing as well as during the hearing. The contents of the case file, including the application form and documents of verification, used by the Department to establish the household's ineligibility or eligibility and allotment level will be made available, provided that confidential information, such as the names of individuals who have disclosed information about the household without its knowledge or the nature or status of pending criminal prosecutions, is protected from release. If requested by the household or its representative, the Department will provide one free copy of the portions of the case file that are relevant to the hearing. Confidential information that is protected from release and other documents or records which the household would not otherwise have an opportunity to contest or challenge will not be introduced at the hearing or affect the Department's decision; (ii) The household or its representative may present the case or have it presented by legal counsel or another person;(iii) The household or its representative is entitled to call or offer witnesses;(iv) The household or its representative may advance arguments without undue interference;(v) The household or its representative is entitled to question any testimony or evidence. This includes having an opportunity to cross-examine adverse witnesses; and(vi) The household or its representative is entitled to submit evidence to establish all pertinent facts and circumstances in the case.006.03(F)HEARING DECISIONS. The decision will: (1) Comply with federal laws and regulations;(2) Be based on the hearing record;(3) Be made available to the household;(4) Summarize the facts of the case;(5) Specify reasons for the decision;(6) Identify supporting evidence and pertinent federal regulations; and(7) Become a part of the hearing and case records.006.03(F)(i)NOTIFICATION OF HEARING DECISIONS. The Hearing Office informs the household and the Department in writing of: (a) The hearing decision and the reasons for the decision;(b) The available appeal rights; and(c) Benefits being issued or terminated within the appropriate time limits.007.03(F)(i)(1)PUBLIC INSPECTION. All hearing records and decisions will be available for public inspection and copying, subject to disclosure safeguards provided that identifying names and addresses of household and other members of the household are kept confidential.006.04SPECIAL ARRANGEMENTS. The following special arrangements are taken into consideration for fair hearings. 006.04(A)AGENCY CONFERENCES. The Department will offer agency conferences to households that wish to contest a denial of expedited service or to households affected by an agency action. Use of an agency conference is optional to the household and will in no way delay or replace the fair hearing process. The conference may be attended by the Department, and will be attended by the supervisor or local administrator, and the household, its representative, or both. The conference may lead to an informal resolution of the dispute. However, a fair hearing will still be held unless the household makes a written withdrawal of its request. Agency conferences for households contesting a denial of expedited service will be scheduled within two working days, unless the household requests otherwise.006.04(B)CONSOLIDATED HEARINGS. A single group hearing may be conducted for a series of individual requests where the sole issues being raised are those of state law, federal law, regulation or policy. Each individual household will be permitted to present its own case or have its case presented by a representative.006.05ACTION ON FAIR HEARINGS. The following applies to actions taken after a fair hearing decision. 006.05(A) DECISIONS RESULTING IN BENEFIT INCREASE. Fair hearing decisions which result in an increase in benefits will be reflected in the allotment issued within ten days after the receipt of the hearing decision, even if the Department will provide the household with an opportunity to obtain the allotment outside of the normal issuance cycle.006.05(B)DECISIONS RESULTING IN BENEFIT DECREASE. Fair hearing decisions which result in a decrease in benefits will be reflected in the household's next scheduled issuance following the Department's receipt of the hearing decision. If the individual has received benefits to which the individual was not entitled to pending the fair hearing decision, a claim will be filed. In the case of a disqualification such as a work requirement, the Department will disqualify the household or the household member beginning with the month after the receipt of the fair hearing decision.475 Neb. Admin. Code, ch. 1, § 006
Amended effective 5/21/2016.Amended effective 7/4/2020