Section 1240-02-05-.13 - DUE PROCESS PROCEDURES(1) Administrative Review of the Notice of Lien.(a) Once a lien has been imposed by the Department of Human Services on real or personal property of the obligor, wherever located, pursuant to the requirements of Rule 1240-2-5-.13, a party may administratively appeal the criteria in subparagraphs (3)(a) - (c) below, related to the underlying child support obligation and propriety of the lien, at such time as the existence of the lien has actually prevented or is preventing a transaction related to the real or personal property, such as a transfer or sale of the property, referred to herein as an "adverse action."(b) The party seeking administrative review of the propriety of the lien shall file a written request for administrative review with the Department within fifteen (15) calendar days of the notice of the adverse action referenced in subparagraph (a) above.(c) Notwithstanding the location of the real or personal property subject to the lien, all administrative reviews pursuant to this paragraph will be conducted by the Tennessee Department of Human Services according to the requirements of Tennessee law.(2) Administrative Review of Order and/or Notice of Seizure and Sale of Assets. (a) Administrative seizure, levy, or sale of real or personal property will be effected according to the laws of the State in which the real or personal property is located.(b) Administrative review of the propriety of the seizure, levy, or sale of real or personal property will be conducted according to the laws of the State in which the real or personal property is located.(c) Property Located Within the State of Tennessee.1. The person seeking administrative review of the Department's administrative order of seizure, or levy, or sale upon the person's assets located in the State of Tennessee shall file a written request with the office of the Department indicated in the notice given in Rule 1240-2-5-.06(4) within fifteen (15) calendar days of the date of the notice of seizure or sale.2. Any person or entity who or which is owner of a joint account in any financial institution, or whose or which property interest has been seized due to the presumption of joint ownership as provided in T.C.A. § 36-5-903, shall have standing to appeal any order or notice of seizure or sale of assets pursuant to this Chapter.(d) Notwithstanding the requirements of subparagraphs (b) above, administrative review of issues related to the underlying child support obligation on which the seizure, levy, or sale is based will be conducted by the Department pursuant to the laws of the State of Tennessee.(3) Administrative Review Conducted in the State of Tennessee.(a) The issues available for administrative review under this Rule shall be limited to: 1. Whether the identities of the persons or entities involved are correct;2. Whether there is a mistake of fact involving the action by the Department;3. Whether the amount of the obligation is correct;4. The extent of the obligor's interest in the assets; and5. Whether good cause exists not to seize, sell, levy upon, distribute or otherwise dispose of all or a part of such assets.(b) Upon review pursuant to the criteria of subparagraph (a), the hearing officer may direct that there is a mistake as to the identity or interest of the person whose assets have been seized or levied upon and dismiss the order, or may direct that all or only a portion of the assets be disposed of, or that there be some other order for the disposition of the assets of the obligor in order to satisfy the support arrearage.(c) The Department's hearing officer or the reviewing court may grant any relief of a preliminary or temporary nature relative to the obligor's assets, as may be appropriate under the circumstances, pending the entry of the final order.(d) The hearing officer may not forgive any support arrearages upon review of any administrative order.(e) Use of Court and TCSES Records at Hearings.1. The record of support, as certified by the clerk of the court, or as shown by the Department's child support computer system (TCSES) shall be admissible in the hearing without further foundation testimony, and shall constitute a rebuttable presumption as to the amount of support which is in arrears and which is owed by the obligor in any review pursuant to this Chapter.2. The hearing officer shall have no authority to rule the information submitted pursuant to this paragraph is not sufficient for proof of the arrears unless clear evidence is presented by the obligor to overcome the rebuttable presumption established by the clerk's or the Department's records.(f) Use of Affidavits. 1. If submitted to the opposing party ten (10) days prior to the administrative hearing, the affidavit of a keeper or custodian of any other records, including, but not limited to, the records of any financial institution or the Department of Human Services or any other government or private entity, concerning any matter before the hearing officer, shall be admitted by the hearing officer unless an objection to its admission is submitted five (5) days prior to the hearing.2. If an objection to the admission of the affidavit is filed and is upheld by the hearing officer, the hearing officer shall continue the case to permit the production of records or the taking of any further testimony, which may be necessary to resolve the issues.(g) In order to expedite the review of these matters, the hearing officer shall have discretion to take testimony of any party or witness by telephone or video or by other electronic technology, and documents may, in the hearing officer's discretion, be submitted by facsimile transmission or by any other electronic technology.(h) Judicial review of the Department's administrative decision shall be conducted according to the provisions of T.C.A. § 36-5-1003.Tenn. Comp. R. & Regs. 1240-02-05-.13
Original rule filed December 18, 2001; effective March 3, 2002. Repeal and new rule filed August 17, 2005; effective October 31, 2005.Authority: T.C.A. §§ 4-5-202;24-7-121; 36-5-901 et seq., 36-5-905(c); 36-5-912; 36-5-1001 et seq., and 36-5-1001(a)(1)(E).