S.C. Code Regs. § 114-130

Current through Register Vol. 48, No. 3, March 22, 2024

Section 114-130 - General Fair Hearing Procedures

A. Except as otherwise specified, the procedures outlined in this section apply to all hearing requests.

B. Request for Fair Hearing

(1) A request for hearing must be made either in writing or orally, except where otherwise specified for particular programs, to the caseworker or to the OAH within thirty (30) days of receiving notification of adverse action.

(2) A request shall contain

(a) The name of the party requesting the hearing;

(b) Information sufficient to identify the decision, which is being contested; and

(c) The relief requested.

C. Representation

(1) The claimant/petitioner may appoint a representative or may represent himself/herself.

(2) The claimant/petitioner or representative may review the evidence in the case file, either on the date of the hearing or at an earlier time upon request, and present additional evidence.

(3) The claimant/petitioner or representative may present witnesses and question any witnesses at the hearing.

D. Legal Counsel to the Office of Administrative Hearings

(1) Legal counsel to the OAH shall have authority to attend the fair hearing and assist the hearing officer/committee in the preparation of its findings of fact, statements of policy, and conclusions of law. Legal counsel to the OAH shall not provide legal assistance to either party to the proceeding.

(2) Legal counsel to the OAH may be present during the committee's deliberations on its decisions.

E. Hearing Officers

(1) A hearing officer shall preside over all hearings. In those cases to be decided by a committee, a single hearing officer shall preside over the hearing.

(2) The presiding hearing officer has the authority to conduct a fair and impartial hearing, including the authority to:

(a) order a pre-hearing conference for the simplification of issues or a settlement conference;

(b) review case material prior to the hearing and to establish a procedure commensurate to the complexity of the issues presented and the types of proof likely to be introduced during the hearing;

(c) issue subpoenas;

(d) rule on offers of proof and the admissibility of evidence;

(e) issue orders, rulings, and dismissals;

(f) permit depositions to be taken when the ends of justice would be served;

(g) regulate the course of the fair hearing and the conduct of the parties and their counsel;

(h) administer oaths or affirmations;

(i) rule on procedural and substantive motions;

(j) call, examine, sequester and/or disqualify witnesses;

(k) exclude people from the hearing room pursuant to confidentiality laws governing particular program areas; and

(l) conclude the hearing when satisfied that all pertinent information bearing on the issue has been introduced and examined.

(3) Disqualification

(a) The hearing officer/committee member shall disqualify himself or herself from participating in a hearing in which the officer's/member's impartiality might be reasonably questioned based upon a personal bias or prejudice, familial relationship or other basis, or in which the hearing officer/committee member may have any interest in the matter pending for decision.

(b) A disqualification pursuant to subsection (a) shall be in writing with notice to the file and a copy delivered to the Director of Individual and Provider Rights in the OAH.

(c) A party who feels that the hearing officer's/member's impartiality might be reasonably questioned may, upon notice to the opposing party, file a motion to have the officer/member disqualified.

(i) Such a motion shall set forth the grounds upon which the party feels the officer's/ member's impartiality has been compromised.

(ii) The Director of Individual and Provider Rights in the OAH shall rule on the motion and serve a written statement of the reasons supporting his or her decision.

F. Ex-Parte Communications

(1) Ex-parte communications are prohibited and shall not be considered in deciding any matter in issue.

(2) If a hearing officer or committee member receives an ex-parte communication that he or she knows or has reason to believe is prohibited, he or she shall promptly make the communication part of the record and shall furnish a written copy of the communication to all parties explaining the circumstances under which he or she became aware of the communication.

(3) Any party who makes an ex-parte communication may be subject to having a witness disqualified or evidence excluded at the discretion of the hearing officer in the interest of fairness and equity.

G. Pre-Hearing Procedure

(1) Scheduling of Hearings

The Office of Administrative Hearings shall schedule hearings to provide thirty (30) days notice of the hearing date to the parties, unless waived by them. Because of issues of attachment and the best interests of the child, requests for hearings regarding the placement of children shall receive priority over other appeal cases.

(2) The notice of hearing shall include the following:

(a) Date, time, and place of the hearing;

(b) Statement of the issues;

(c) Notice of the right to appoint a representative;

(d) Notice that the claimant/petitioner's failure to appear without good cause will result in dismissal of the appeal;

(e) Request to notify the OAH if special accommodations or a translator will be needed at the hearing.

(3) Pre-Hearing Conferences

(a) Upon request of a party or a hearing officer/committee member, a pre-hearing conference may be held prior to the hearing to simplify the issues to be determined; to obtain stipulations as to the admissibility of evidence, undisputed facts or the application of a particular law; to identify and exchange documentary evidence intended to be introduced at the hearing; to determine deadlines for the completion of any discovery and, if possible, to reach a settlement.

(b) A pre-hearing conference shall be an informal proceeding conducted by the hearing officer and may be conducted via telephone, in the discretion of the hearing officer/presiding committee member.

(c) Any agreement reached may be the subject of an order issued by the hearing officer.

(4) Motions

(a) All pre-hearing motions shall contain the caption of the case, title of the motion, the name, address and signature of the person preparing it, the grounds for relief and the relief sought.

(b) All motions shall be filed and served upon the opposing party not later than ten (10) days before the hearing date, unless otherwise ordered by the hearing officer.

(c) A party may file and serve a response to a motion within ten (10) days unless the time is extended or shortened by the hearing officer.

(d) A motion for a continuance shall state the reasons for the request and whether the opposing party has consented to the request; however, no such motion may be made ex-parte except in an emergency when notice to the opposing party is not feasible.

(e) Any motion regarding discovery shall state that the moving party has made a good faith attempt to resolve, with the other party, the issues raised by the motion.

(f) The hearing officer may rule on the basis of the written motion and any response thereto or may order argument on the motion. The decision to hold oral argument is within the discretion of the hearing officer.

(5) Discovery

Discovery shall be permitted as provided in S.C. Code Ann. Section 1-23-320 (1976 & Supp. 1993); however, each party shall be limited to taking three depositions, except for good cause shown.

(6) Pre-Hearing Exchange of Information

Upon notice, the hearing officer may, in appropriate cases, require the parties to exchange prior to the hearing:

(a) a final list of witnesses the party reasonably expects to testify;

(b) a final list of all exhibits expected to be offered at the hearing;

(c) a final list of all facts that the party intends to request judicial notice of, with supporting documentation.

H. Dismissals

(1) The OAH has the authority to dismiss a request for hearing when

(a) the request for hearing is not timely filed;

(b) the claimant/petitioner or representative requests withdrawal of the request for hearing;

(c) the claimant/petitioner fails to appear at the scheduled time and place for the hearing;

(d) changes in either Federal or State law require automatic grant adjustments for classes of clients.

(2) A party whose case has been dismissed may request reinstatement of the case if he/she can show good cause. Such request must be made within ten (10) days of the dismissal.

I. Hearing Procedure

(1) The hearing officer will give an opening statement briefly describing the nature of the proceeding and identifying the issues of the hearing.

(2) The parties shall be allowed to make opening and closing statements subject to reasonable limitations as determined by the presiding hearing officer.

(3) Evidence

(a)S. C. Code Ann. Section 1-23-330 (1976) (as amended) shall govern questions of admissibility;

(b) Each party shall have the opportunity to present documentary evidence and witnesses, including child witnesses, who will be subject to cross-examination. First, the Department will present evidence to support the action or inaction that is being appealed, and then the petitioner will present his or her case; however, the order of presentation may be changed at the discretion of the hearing officer/committee. The parties may present rebuttal evidence.

(4) The hearing officer shall swear or affirm each witness. At the hearing officer's discretion, witnesses may be sequestered during the hearing.

(5) Objections

All objections to procedure, the admissibility of evidence, or other matters must be made timely and stated on the record.

(6) Child Witnesses

The hearing officer may modify procedures and room accommodations to minimize the trauma of testifying, including, but not limited to:

(a) allowing a parent or other support person to be present in the room;

(b) allowing frequent breaks to be taken as necessary for the child's focus;

(c) allowing leading questions during direct examination, to the extent necessary to develop the child's testimony;

(d) allowing a more comfortable configuration of the hearing room;

(e) requiring attorneys, or other questioners, to pose questions and objections while seated and in a manner that is not intimidating.

(7) Out-of-Court Statements by Certain Children

(a) An out-of-court statement made by a child who is under twelve years of age, or who functions cognitively, adaptively, or developmentally under the age of twelve, concerning any issue in dispute is admissible if the requirements of S.C. Code Section 19-1-180(B), (C), (D) and (E) are met, regardless of whether it would otherwise be admissible.

(b) The limitations of Section 19-1-180(A) do not apply.

J. Decision

(1) The Office of Administrative Hearings will issue a final decision, in writing, which shall include separate findings of fact and conclusions of law promptly after the date of the conclusion of the hearing. In cases heard by a committee, the entire committee shall participate in rendering the final decision, and in cases where the committee decision is not unanimous, the majority vote shall govern.

(2) The determination by the hearing committee is the final administrative determination by the Department to be afforded to the petitioner.

K. Motion for Reconsideration

(1) Any party aggrieved by a final order may, within ten (10) days of the service of the order, file a written Motion for Reconsideration, which shall specify in detail the grounds for relief sought and supporting authorities. The OAH may order a reconsideration on its own motion within ten (10) days after the service of the final order.

(2) The filing of a motion for reconsideration shall not suspend or delay the effective date of the order, and the order shall take effect on the date fixed by the Office of Administrative Hearings and shall continue in effect unless the motion is granted or until the order is superseded, modified, or set aside as provided by law.

(3) The Motion for Reconsideration will be granted only on the basis of:

(a) a material error of law;

(b) a material error of fact; or

(c) the discovery of new evidence sufficiently strong to reverse or modify the order, which could not have been previously discovered by due diligence.

(4) The Office of Administrative Hearings may order a rehearing or enter an order with reference to the motion without ordering a hearing, and shall dispose of the motion within thirty (30) days after it is filed.

(5) If the Office of Administrative Hearings determines, in its discretion, that a rehearing is necessary, the matter shall be set for further proceedings as soon as practicable.

(6) If after such rehearing, it appears that the original decision, order, or determination is in any respect unlawful or unreasonable, the hearing officer/committee may reverse, change, modify, or suspend the same accordingly. Any decision, order or determination made after such reconsideration, reversing, changing, modifying or suspending the original determination shall have the same force and effect as the original decision, order, or determination.

L. Record After the Final Decision

The record of the contested case shall contain:

(1) all correspondence, pleadings, motions, rulings and deposition transcripts filed with OAH;

(2) all scheduling notices;

(3) all evidence received or considered and proffers of evidence excluded;

(4) a statement of matters judicially noticed;

(5) the hearing officer's final decision;

(6) the tape of the testimony taken during the proceeding and the transcript if prepared.

M. Appeal and Request for Transcript

(1) The final decision rendered by the OAH is subject to administrative or judicial review as provided by law.

(2) Upon filing a petition for review to the appropriate authority, the appellant shall request that the OAH prepare the transcript and enclose a copy of the petition for review.

(3) Either party may request that the OAH prepare the transcript in a case that has not been appealed.

(4) Within thirty (30) days of receipt of a request to prepare the transcript, the OAH shall transmit a copy of the record along with the transcript of the hearing to counsel for the Department of Social Services, the appellant and the appropriate appellate body.

(5) Upon request, an individual other than a party to the hearing, which is not otherwise confidential by statute, may receive a copy of the tape of the hearing for a reasonable fee.

N. Confidentiality

Information, records and other material used in connection with a hearing are confidential, according to confidentiality laws governing the subject matter/program area of the hearing.

S.C. Code Regs. 114-130

Added by State Register Volume 24, Issue No. 7, eff July 28, 2000.