[Code of Federal Regulations]

[Title 7, Volume 4]

[Revised as of January 1, 2006]

From the U.S. Government Printing Office via GPO Access

[CITE: 7CFR246.9]



[Page 342-344]

 

                          TITLE 7--AGRICULTURE

 

    CHAPTER II--FOOD AND NUTRITION SERVICE, DEPARTMENT OF AGRICULTURE

 

PART 246_SPECIAL SUPPLEMENTAL NUTRITION PROGRAM FOR WOMEN, INFANTS AND 

CHILDREN--Table of Contents

 

                    Subpart C_Participant Eligibility

 

Sec. 246.9  Fair hearing procedures for participants.



    (a) Availability of hearings. The State agency shall provide a 

hearing procedure through which any individual may appeal a State or 

local agency action which results in a claim against the individual for 

repayment of the cash value of improperly issued benefits or results in 

the individual's denial of participation or disqualification from the 

Program.

    (b) Hearing system. The State agency shall provide for either a 

hearing at the State level or a hearing at the local level which permits 

the individual to appeal a local agency decision to the State agency. 

The State agency may adopt local level hearings in some areas, such as 

those with large caseloads, and maintain only State level hearings in 

other areas.

    (c) Notification of appeal rights. At the time of a claim against an 

individual for improperly issued benefits or at the time of 

participation denial or of disqualification from the Program, the State 

or local agency shall inform each individual in writing of the right to 

a fair hearing, of the method by which a hearing may be requested, and 

that any positions or arguments on behalf of the individual may be 

presented personally or by a representative such as a relative, friend, 

legal counsel or other spokesperson. Such notification is not required 

at the expiration of a certification period.

    (d) Request for hearing. A request for a hearing is defined as any 

clear expression by the individual, the individual's parent, caretaker, 

or other representative, that he or she desires an opportunity to 

present his or her case to a higher authority. The State or local agency 

shall not limit or interfere with the individual's freedom to request a 

hearing.

    (e) Time limit for request. The State or local agency shall provide 

individuals a reasonable period of time to request fair hearings; 

provided that, such time limit is not less than 60 days from the date 

the agency mails or gives the applicant or participant the notice of 

adverse action.

    (f) Denial or dismissal of request. The State and local agencies 

shall not deny or dismiss a request for a hearing unless--

    (1) The request is not received within the time limit set by the 

State agency in accordance with paragraph (e) of this section;



[[Page 343]]



    (2) The request is withdrawn in writing by the appellant or a 

representative of the appellant;

    (3) The appellant or representative fails, without good cause, to 

appear at the scheduled hearing; or

    (4) The appellant has been denied participation by a previous 

hearing and cannot provide evidence that circumstances relevant to 

Program eligibility have changed in such a way as to justify a hearing.

    (g) Continuation of benefits. Except for participants whose 

certification period has expired, participants who appeal the 

termination of benefits within the 15 days advance adverse notice period 

provided by Sec. 246.7(j)(6) shall continue to receive Program benefits 

until the hearing official reaches a decision or the certification 

period expires, whichever occurs first. Applicants who are denied 

benefits at initial certification or because of the expiration of their 

certification may appeal the denial, but shall not receive benefits 

while awaiting the hearing.

    (h) Rules of procedure. State and local agencies shall process each 

request for a hearing under uniform rules of procedure and shall makes 

these rules of procedure available for public inspection and copying. At 

a minimum, such rules shall include: The time limits for requesting and 

conducting a hearing; all advance notice requirements; the rules of 

conduct at the hearing; and the rights and responsibilities of the 

appellant. The procedures shall not be unduly complex or legalistic.

    (i) Hearing official. Hearings shall be conducted by an impartial 

official who does not have any personal stake or involvement in the 

decision and who was not directly involved in the initial determination 

of the action being contested. The hearing official shall--

    (1) Administer oaths or affirmations if required by the State;

    (2) Ensure that all relevant issues are considered;

    (3) Request, receive and make part of the hearing record all 

evidence determined necessary to decide the issues being raised;

    (4) Regulate the conduct and course of the hearing consistent with 

due process to ensure an orderly hearing;

    (5) Order, where relevant and necessary, an independent medical 

assessment or professional evaluation from a source mutually 

satisfactory to the appellant and the State agency; and

    (6) Render a hearing decision which will resolve the dispute.

    (j) Conduct of the hearing. The State or lcoal agency shall ensure 

that the hearing is accessible to the appellant and is held within three 

weeks from the date the State or local agency received the request for a 

hearing. The State or local agency shall provide the appellant with a 

minimum of 10 days advance written notice of the time and place of the 

hearing and shall enclose an explanation of the hearing procedure with 

the notice. The State or local agency shall also provide the appellant 

or representative an opportunity to--

    (1) Examine, prior to and during the hearing, the documents and 

records presented to support the decision under appeal;

    (2) Be assisted or represented by an attorney or other persons;

    (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; and

    (6) Submit evidence to establish all pertinent facts and 

circumstances in the case.

    (k) Fair hearing decisions. (1) Decisions of the hearing official 

shall be based upon the application of appropriate Federal law, 

regulations and policy as related to the facts of the case as 

established in 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, constitute the exclusive record 

for a final decision by hearing official. The State or local agency 

shall retain the hearing record in accordance with Sec. 246.25 and make 

these records available, for copying and inspection, to the appellant or 

representative at any reasonable time.

    (2) The decision by the hearing official shall summarize the facts 

of the



[[Page 344]]



case, specify the reasons for the decision, and identify the supporting 

evidence and the pertinent regulations or policy. The decision shall 

become a part of the record.

    (3) Within 45 days of the receipt of the request for the hearing, 

the State or local agency shall notify the appellant or representative 

in writing of the decision and the reasons for the decision in 

accordance with paragraph (k)(2) of this section. If the decision is in 

favor of the appellant and benefits were denied or discontinued, 

benefits shall begin immediately. If the decision concerns 

disqualification and is in favor of the agency, as soon as 

administratively feasible, the local agency shall terminate any 

continued benefits, as decided by the hearing official. If the decision 

regarding repayment of benefits by the appellant is in favor of the 

agency, the State or local agency shall resume its efforts to collect 

the claim, even during pendency of an appeal of a local-level fair 

hearing decision to the State agency. The appellant may appeal a local 

hearing decision to the State agency, provided that the request for 

appeal is made within 15 days of the mailing date of the hearing 

decision notice. If the decision being appealed concerns 

disqualification from the Program, the appellant shall not continue to 

receive benefits while an appeal to the State agency of a decision 

rendered on appeal at the local level is pending. The decision of a 

hearing official at the local level is binding on the local agency and 

the State agency unless it is appealed to the State level and overturned 

by the State hearing official.

    (4) The State and local agency shall make all hearing records and 

decisions available for public inspection and copying; however, the 

names and addresses of participants and other members of the public 

shall be kept confidential.

    (l) Judicial review. If a State level decision upholds the agency 

action and the appellant expresses an interest in pursuing a higher 

review of the decision, the State agency shall explain any further State 

level review of the decision and any State level rehearing process. If 

these are either unavailable or have been exhausted, the State agency 

shall explain the right to pursue judicial review of the decision.



[50 FR 6121, Feb. 13, 1985, as amended at 52 FR 21236, June 4, 1987; 59 

FR 11503, Mar. 11, 1994]