[Code of Federal Regulations]
[Title 7, Volume 4]
[Revised as of January 1, 2004]
From the U.S. Government Printing Office via GPO Access
[CITE: 7CFR273.15]

[Page 735-741]
 
                          TITLE 7--AGRICULTURE
 
    CHAPTER II--FOOD AND NUTRITION SERVICE, DEPARTMENT OF AGRICULTURE
 
PART 273_CERTIFICATION OF ELIGIBLE HOUSEHOLDS--Table of Contents
 
Sec.  273.15  Fair hearings.

    (a) Availability of hearings. Except as provided in Sec.  271.7(f), 
each State agency shall provide a fair hearing to any household 
aggrieved by any action of the State agency which affects the 
participation of the houshold in the Program.
    (b) Hearing system. Each State agency shall provide for either a 
fair hearing at the State level or for a hearing at the local level 
which permits the household to further appeal a local decision to a 
State level fair hearing. State agencies may adopt local level hearings 
in some project areas and maintain only State level hearings in other 
project areas.
    (c) Timely action on hearings--(1) State level hearings. Within 60 
days of receipt of a request for a fair hearing, the State agency shall 
assure that the hearing is conducted, a decision is reached, and the 
household and local agency are notified of the decision. Decisions which 
result in an increase in household benefits shall be reflected in the 
coupon allotment within 10 days of the receipt of the hearing decision 
even if the State agency must provide a supplementary ATP or otherwise 
provide the household with an opportunity to obtain the allotment 
outside of the normal issuance cycle. However, the State agency may take 
longer than 10 days if it elects to make the decision effective in the 
household's normal issuance cycle, provided that the issuance will occur 
within 60 days from the household's request for the hearing. Decisions 
which result in a decrease in household benefits shall be reflected in 
the next scheduled issuance following receipt of the hearing decision.
    (2) Local level hearings. Within 45 days of receipt of a request for 
a fair hearing, the State agency shall assure that the hearing is 
conducted, and that a decision is reached and reflected in the coupon 
allotment.
    (3) Appeals of local level decisions. Within 45 days of receipt of 
any request for a State level review of a decision or for a new State 
level hearing, the State agency shall assure that the review or the new 
hearing is conducted, and that a decision is reached and reflected in 
the coupon allotment.
    (4) Household requests for postponement. The household may request 
and is entitled to receive a postponement of the scheduled hearing. The 
postponement shall 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. For example, if a State level hearing is postponed by the 
household for 10 days, notification of the hearing decision will be 
required within 70 days from the date of the request for a hearing.
    (d) Agency conferences. (1) The State agency shall offer agency 
conferences to households which wish to contest a denial of expedited 
service under the procedures in Sec.  273.2(i). The State agency may 
also offer agency conferences to households adversely affected by an

[[Page 736]]

agency action. The State agency shall advise households that use of an 
agency conference is optional and that it shall in no way delay or 
replace the fair hearing process. The agency conferences may be attended 
by the eligibility worker responsible for the agency action, and shall 
be attended by an eligibility supervisor and/or the agency director, and 
by the household and/or its representative. An agency conference may 
lead to an informal resolution of the dispute. However, a fair hearing 
must still be held unless the household makes a written withdrawal of 
its request for a hearing.
    (2) An agency conference for households contesting a denial of 
expedited service shall be scheduled within 2 working days, unless the 
household requests that it be scheduled later or states that it does not 
wish to have an agency conference.
    (e) Consolidated hearings. State agencies may respond to a series of 
individual requests for hearings by conducting a single group hearing. 
State agencies may consolidate only cases where individual issues of 
fact are not disputed and where related issues of State and/or Federal 
law, regulation or policy are the sole issues being raised. In all group 
hearings, the regulations governing individual hearings must be 
followed. Each individual household shall be permitted to present its 
own case or have its case presented by a representative.
    (f) Notification of right to request hearing. At the time of 
application, each household shall be informed in writing of its right to 
a hearing, of the method by which a hearing may be requested, and that 
its case may be presented by a household member or a representative, 
such as a legal counsel, a relative, a friend or other spokesperson. In 
addition, at any time the household expresses to the State agency that 
it disagrees with a State agency action, it shall be reminded of the 
right to request a fair hearing. If there is an individual or 
organization available that provides free legal representation, the 
household shall also be informed of the availability of that service.
    (g) Time period for requesting hearing. A household shall be allowed 
to request a hearing on any action by the State agency or loss of 
benefits which occurred in the prior 90 days. Action by the State agency 
shall include a denial of a request for restoration of any benefits lost 
more than 90 days but less than a year prior to the request. In 
addition, at any time within a certification period a household may 
request a fair hearing to dispute its current level of benefits.
    (h) Request for hearing. A request for a hearing is defined as a 
clear expression, oral or written, by the household or its 
representative to the effect that it wishes to appeal a decision or that 
an opportunity to present its case to a higher authority is desired. If 
it is unclear from the household's request what action it wishes to 
appeal, the State agency may request the household to clarify its 
grievance. The freedom to make a request for a hearing shall not be 
limited or interfered with in any way.
    (i) State agency responsibilities on hearing requests. (1) Upon 
request, the State agency shall 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 request speaks a language other 
than English and the State agency is required by Sec.  272.4(c)(3) to 
provide bilingual staff or interpreters who speak the appropriate 
language, the State agency shall insure that the hearing procedures are 
verbally explained in that language. Upon request, the State agency 
shall also help a household with its hearing request. If a household 
makes an oral request for a hearing, the State agency shall complete the 
procedures necessary to start the hearing process. Households shall be 
advised of any legal services available that can provide representation 
at the hearing.
    (2) The State agency shall expedite hearing requests from 
households, such as migrant farmworkers, that plan to move from the 
jurisdiction of the hearing official before the hearing decision would 
normally be reached. Hearing requests from these households shall be 
processed faster than others if necessary to enable them to receive a 
decision and a restoration of benefits if the

[[Page 737]]

decision so indicates before they leave the area.
    (3) The State agency shall publish clearly written uniform rules of 
procedure that conform to these regulations and shall make the rules 
available to any interested party. At a minimum, the uniform rules of 
procedure shall include the time limits for hearing requests as 
specified in paragraph (g) of this section, advance notification 
requirements as specified in paragraph (i)(1) of this section, hearing 
timeliness standards as specified in paragraph (c) of this section, and 
the rights and responsibilities of persons requesting a hearing as 
specified in paragraph (p) of this section.
    (j) Denial or dismissal of request for hearing. (1) The State agency 
must not deny or dismiss a request for a hearing unless:
    (i) The State agency does not receive the request within the 
appropriate time frame specified in paragraph (g) of this section, 
provided that the State agency considers untimely requests for hearings 
as requests for restoration of lost benefits in accordance with Sec.  
273.17;
    (ii) The household or its representative fails, without good cause, 
to appear at the scheduled hearing;
    (iii) The household or its representative withdraws the request in 
writing; or
    (iv) The household or its representative orally withdraws the 
request and the State agency has elected to allow such oral requests.
    (2) The State agency electing to accept an oral expression from the 
household or its representative to withdraw a fair hearing may discuss 
the option with the household when it appears that the State agency and 
household have resolved issues related to the fair hearing. However, the 
State agency is prohibited from coercion or actions which would 
influence the household or its representative to withdraw the 
household's fair hearing request. The State agency must provide a 
written notice to the household within 10 days of the household's 
request confirming the withdrawal request and providing the household 
with an opportunity to request a hearing. The written notice must advise 
the household it has 10 days from the date it receives the notice to 
advise the State agency of its desire to request, or reinstate, the 
hearing. If the household timely advises the State agency that it wishes 
to reinstate the fair hearing, the State agency must provide the 
household with a fair hearing, within the time frames specified in 
paragraph (c) of this section and beginning the date the household 
advises the State agency that it wishes to reinstate its request. The 
State agency must reinstate a fair hearing as requested from a household 
at least once. The State agency must not deny a household's request for 
a fair hearing if the household is aggrieved by a State agency action 
that differs from the reinstated action.
    (k) Continuation of benefits. (1) If a household requests a fair 
hearing within the period provided by the notice of adverse action, as 
set forth in Sec.  273.13, and its certification period has not expired, 
the household's participation in the program shall be continued on the 
basis authorized immediately prior to the notice of adverse action, 
unless the household specifically waives continuation of benefits. The 
form for requesting a fair hearing shall contain space for the household 
to indicate whether or not continued benefits are requested. If the form 
does not positively indicate that the household has waived continuation 
of benefits, the State agency shall assume that continuation of benefits 
is desired and the benefits shall be issued accordingly. If the State 
agency action is upheld by the hearing decision, a claim against the 
household shall be established for all overissuances, with one 
exception. In the case of an EBT adjustment, as defined in Sec.  
274.12(f)(4)(ii) of this chapter, once an adverse action is upheld, the 
State agency shall immediately debit the household's account for the 
total amount stated in its original notice. If there are no benefits or 
insufficient benefits remaining in the household's account at the time 
the State agency action is upheld, the State agency may only make the 
adjustment from the next month's benefits, regardless of whether this 
satisfies the full adjustment amount. If a hearing request is not made 
within the period provided by the notice of adverse action, benefits

[[Page 738]]

shall be reduced or terminated as provided in the notice. However, if 
the household establishes that its failure to make the request within 
the advance notice period was for good cause, the State agency shall 
reinstate the benefits to the prior basis. When benefits are reduced or 
terminated due to a mass change, participation on the prior basis shall 
be reinstated only if the issue being contested is that food stamp 
eligibility or benefits were improperly computed or that Federal law or 
regulation is being misapplied or misinterpreted by the State agency.
    (2) Once continued or reinstated, the State agency must not reduce 
or terminate benefits prior to the receipt of the official hearing 
decision unless:
    (i) The certification period expires. The household may reapply and 
may be determined eligible for a new certification period with a benefit 
amount as determined by the State agency;
    (ii) 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 State agency 
improperly computed the benefits or misinterpreted or misapplied such 
law or regulation is invalid;
    (iii) 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;
    (iv) A mass change affecting the household's eligibility or basis of 
issuance occurs while the hearing decision is pending; or
    (v) The household, or its representative, orally withdrew its 
request for a fair hearing and did not advise the State agency of its 
desire to reinstate the fair hearing within the time frame specified in 
paragraph (j)(2) of this section.
    (3) The State agency shall promptly inform the household in writing 
if benefits are reduced or terminated pending the hearing decision.
    (l) Notification of time and place of hearing. The time, date, and 
place of the hearing shall be arranged so that the hearing is accessible 
to the household. At least 10 days prior to the hearing, advance written 
notice shall be provided to all parties involved to permit adequate 
preparation of the case. However, the household may request less advance 
notice to expedite the scheduling of the hearing. The notice shall:
    (1) Advise the household or its representative of the name, address, 
and phone number of the person to notify in the event it is not possible 
for the household to attend the scheduled hearing.
    (2) Specify that the State agency will dismiss the hearing request 
if the household or its representative fails to appear for the hearing 
without good cause.
    (3) Include the State agency 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.
    (4) Explain that the household or representative may examine the 
case file prior to the hearing.
    (m) Hearing official. Hearings shall be conducted by an impartial 
official(s) 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 eligibility worker who took the action. State level hearings shall 
be conducted by State level personnel and shall not be conducted by 
local level personnel.
    (1) Designation of hearing official. The hearing official shall be:
    (i) An employee of the State agency;
    (ii) An individual under contract with the State agency;
    (iii) An employee of another public agency designated by the State 
agency to conduct hearings;
    (iv) A member or official of a statutory board or other legal entity 
designated by the State agency to conduct hearings; or
    (v) An executive officer of the State agency, a panel of officials 
of the State agency or a person or persons expressly appointed to 
conduct State level hearings or to review State and/or local level 
hearing decisions.

[[Page 739]]

    (2) Power and duties. The hearing official shall:
    (i) Administer oaths or affirmations if required by the State;
    (ii) Insure that all relevant issues are considered;
    (iii) Request, receive and make part of the record all evidence 
determined necessary to decide the issues being raised;
    (iv) Regulate the conduct and course of the hearing consistent with 
due process to insure an orderly hearing;
    (v) Order, where relevant and useful, an independent medical 
assessment or professional evaluation from a source mutually 
satisfactory to the household and the State agency;
    (vi) Provide a hearing record and recommendation for final decision 
by the hearing authority; or, if the hearing official is the hearing 
authority, render a hearing decision in the name of the State agency, in 
accordance with paragraph (q) of this section, which will resolve the 
dispute.
    (n) Hearing authority. The hearing authority shall be the person 
designated to render the final administrative decision in a hearing. The 
same person may act as both the hearing official and the hearing 
authority. The hearing authority shall be subject to the requirements 
specified in paragraph (m) of this section.
    (o) Attendance at hearing. The hearing shall be attended by a 
representative of the State agency and by the household and/or its 
representative. The hearing may also be attended by friends or relatives 
of the household if the household so chooses. The hearing official shall 
have the authority to limit the number of persons in attendance at the 
hearing if space limitations exist.
    (p) Household rights during hearing. The household may not be 
familiar with the rules of order and it may be necessary to make 
particular efforts to arrive at the facts of the case in a way that 
makes the household feel most at ease. The household or its 
representative must be given adequate opportunity to:
    (1) 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 State agency to establish the 
household's ineligibility or eligibility and allotment shall 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 State agency shall provide a 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 will not otherwise have an opportunity to 
contest or challenge shall not be introduced at the hearing or affect 
the hearing official's decision.
    (2) Present the case or have it presented by a legal counsel or 
other person.
    (3) Bring witnesses.
    (4) Advance arguments without undue interference.
    (5) Question or refute any testimony or evidence, including an 
opportunity to confront and cross-examine adverse witnesses.
    (6) Submit evidence to establish all pertinent facts and 
circumstances in the case.
    (q) Hearing decisions. (1) Decisions of the hearing authority shall 
comply with Federal law and regulations and shall be based on the 
hearing record. The verbatim transcript or recording of testimony and 
exhibits, or an official report containing the substance of what 
transpired at the hearing, together with all papers and requests filed 
in the proceeding, shall constitute the exclusive record for a final 
decision by the hearing authority. This record shall be retained in 
accordance with Sec.  272.1(f). This record shall also be available to 
the household or its representative at any reasonable time for copying 
and inspection.
    (2) A decision by the hearing authority shall be binding on the 
State agency and shall summarize the facts of the

[[Page 740]]

case, specify the reasons for the decision, and identify the supporting 
evidence and the pertinent Federal regulations. The decision shall 
become a part of the record.
    (3) The household and the local agency shall each be notified in 
writing of: The decision; the reasons for the decision in accordance 
with paragraph (q)(2) of this section; the available appeal rights; and 
that the household's benefits will be issued or terminated as decided by 
the hearing authority. The notice shall also state that an appeal may 
result in a reversal of the decision. The following are additional 
notice requirements and the available appeal rights:
    (i) After a State level hearing decision which upholds the State 
agency action, the household shall be notified of the right to pursue 
judicial review of the decision. In addition, in States which provide 
for rehearings of State level decisions, the household shall be notified 
of the right to pursue a rehearing.
    (ii) After a local level hearing decision which upholds the State 
agency action, the household shall be notified of the right to request a 
completely new State agency level hearing, and that a reversal of the 
decision may result in the restoration of lost benefits to the 
household. In addition, the household shall be advised that if a new 
hearing would pose an inconvenience to the household, a State level 
review of the decision based on the hearing record may be requested 
instead of a new hearing. A clear description of the two appeal 
procedures must be included to enable the household to make an informed 
choice, if it wishes to appeal. If the household indicates that it 
wishes to appeal, but does not select the method, the State agency shall 
proceed with a new State level hearing.
    (4) If the household wishes to appeal a local level hearing 
decision, the appeal request must be filed within 15 days of the mailing 
date of the hearing decision notice. Within 45 days of receipt of any 
request for a State level review of the decision or for a new State 
level hearing, the State agency shall assure that the review or the 
hearing is conducted, and that a decision is reached and reflected in 
the coupon allotment. If a new hearing will not be held, the State level 
hearing official will review the local level hearing record to determine 
if the local decision was supported by substantial evidence. State level 
review procedures shall provide for notifying the local agency and the 
household that each may file a summary of arguments which shall become a 
part of the record if timely received. Both parties shall be advised 
that failure to file a summary will not be considered in deciding the 
case and that the summary must be postmarked within 10 days of receipt 
of the notice.
    (5) All State agency hearing records and decisions shall be 
available for public inspection and copying, subject to the disclosure 
safeguards provided in Sec.  272.1(c), and provided identifying names 
and addresses of household members and other members of the public are 
kept confidential.
    (r) Implementation of local level hearing decision. (1) In the event 
the local hearing decision upholds the State agency action, any benefits 
to the household which were continued pending the hearing shall be 
discontinued beginning with the next scheduled issuance, regardless of 
whether or not an appeal is filed. Collection action for any claims 
against the household for overissuances shall be postponed until the 15-
day appeal request period has elapsed, or if an appeal is requested, 
until the State agency upholds the decision of the local hearing 
authority.
    (2) In the event the local hearing authority decides in favor of the 
household, benefits to the household shall begin or be reinstated, as 
required by the decision, within the 45-day time limit allowed for local 
hearing procedures. Any lost benefits due to the household shall be 
issued as soon as administratively feasible. The State agency shall 
restore benefits to households which are leaving the project area before 
the departure whenever possible. If benefits are not restored prior to 
the household's departure, the State agency shall forward an 
authorization to the benefits to the household or to the new project 
area if this information is known. The new project area shall accept an 
authorization and issue

[[Page 741]]

the appropriate benefits whether the notice is presented by the 
household or received directly from another project area.
    (s) Implementation of final State agency decisions. The State agency 
is responsible for insuring that all final hearing decisions are 
reflected in the household's coupon allotment within the time limits 
specified in paragraph (c) of this section.
    (1) When the hearing authority determines that a household has been 
improperly denied program benefits or has been issued a lesser allotment 
than was due, lost benefits shall be provided to the household in 
accordance with Sec.  273.17. The State agency shall restore benefits to 
households which are leaving the project area before the departure 
whenever possible. If benefits are not restored prior to the household's 
departure, the State agency shall forward an authorization to the 
benefits to the household or to the new project area if this information 
is known. The new project area shall accept an authorization and issue 
the appropriate benefits whether the notice is presented by the 
household or received directly from another proj ect area.
    (2) When the hearing authority upholds the State agency's action, a 
claim against the household for any overissuances shall be prepared in 
accordance with Sec.  273.18.
    (t) Review of appeals of local level decisions. State agencies which 
adopt a local level hearing system shall establish a procedure for 
monitoring local level hearing decisions. The number of local level 
decisions overturned upon appeal to a State level hearing shall be 
examined. If the number of reversed decisions is excessive, the State 
agency shall take corrective action.
    (u) Departmental review of decisions contrary to Federal law and 
regulations. [Reserved]

[Amdt. 132, 43 FR 47889, Oct. 17, 1978, as amended by Amdt. 132, 44 FR 
33385, June 8, 1979; Amdt. 146, 46 FR 1427, Jan. 6, 1981; Amdt. 269, 51 
FR 10793, Mar. 28, 1986; Amdt. 356, 59 FR 29713, June 9, 1994; 64 FR 
48938, Sept. 9, 1999; Amdt. 378, 65 FR 41325, July 5, 2000; Amdt. 388, 
65 FR 70211, Nov. 21, 2000]