[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: 7CFR253.7]



[Page 528-538]

 

                          TITLE 7--AGRICULTURE

 

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

 

PART 253_ADMINISTRATION OF THE FOOD DISTRIBUTION PROGRAM FOR HOUSEHOLDS 

ON INDIAN RESERVATIONS--Table of Contents

 

Sec. 253.7  Certification of households.



    (a) Application processing--(1) General purpose. The application 

process includes filing and completing an application form, being 

interviewed, and having certain information verified. The State agency 

shall act promptly on all applications. Expedited service shall be 

available to household in immediate need. When the State agency is other 

than the ITO, the ITO, when appropriate, may receive copies of 

certification and/or termination notices to the extent requested or 

agreed upon by the household. State agencies and ITOs may develop 

formalized mechanisms to ensure ITO receipt of notices.

    (2) Food Distribution Program application form. The State agency 

shall use an application form acceptable to FNS. The State agency shall 

consult with the ITO in developing the application form. The State 

agency shall make application forms readily accessible to potentially 

eligible households and those groups or organizations involved in 

outreach efforts. The State agency shall also provide an application 

form to anyone who requests the form. State agencies which elect joint 

PA or GA/Food Distribution Program procedures shall follow the 

requirements of paragraph (g) of this section for the application form. 

State agencies may also use an abbreviated recertification form.

    (3) Filing an application. Households must file an application for 

the Food Distribution Program by submitting the form to a certification 

office in person, through an authorized representative or by mail. The 

State agency shall document the date the application was received. Each 

household has the right to file an application form the same day it 

contacts the certification office during office hours on the reservation 

where the household resides. The household shall be advised that it does 

not have to be interviewed before filing the application and may file an 

incomplete application form as long as the application contains the 

applicant's name and address and is signed by a responsible member of 

the household or the household's authorized representative.

    (4) Household cooperation. To determine eligibility, the application 

form



[[Page 529]]



must be completed and signed, the household or its authorized 

representative must be interviewed, and certain information on the 

application must be verified. If the household refuses to cooperate with 

the State agency in completing this process, the application shall be 

denied upon a determination of refusal. For a determination of refusal 

to be made, the household must be able to cooperate, but clearly 

demonstrate that it will not take actions that it can take and that are 

required to complete the application process. For example, to be denied 

for refusal to cooperate, a household must refuse to be interviewed and 

not merely fail to appear for the interview. If there is any question as 

to whether the household has merely failed to cooperate, as opposed to 

refused to cooperate, the household shall not be denied solely for this 

reason. The household shall also be determined ineligible if it refuses 

to cooperate in any subsequent review of its eligibility. Once denied or 

terminated for refusal to cooperate, the household may reapply but shall 

not be determined eligible until it cooperates.

    (5) Interviews. All applicant households, including those submitting 

applications by mail, shall have an interview with a qualified 

eligibility worker prior to initial certification and all 

recertifications. At State agency discretion, applicants may be 

interviewed by telephone or in the home. No household shall be 

interviewed by telephone for any two consecutive certifications without 

a face-to-face interview. State agencies must attempt to schedule home 

visits in advance. Home visits cannot extend required processing 

standards set forth in paragraphs (a)(7) and (a)(9) of this section. The 

individual interviewed may be the head of household, spouse, any other 

responsible member of the household or an authorized representative. The 

household, if it wishes, may be accompanied to the interview by anyone 

of its choice. The interviewer shall not only review the information 

that appears on the application, but shall explore and resolve with the 

household unclear and incomplete information. Households shall be 

advised of their rights and responsibilities during the interview. The 

interview shall be conducted as an official and confidential discussion 

of household circumstances. The applicant's right to privacy shall be 

protected during the interview. Facilities shall be adequate to preserve 

the privacy and confidentiality of the interview.

    (6) Verification. Verification is the use of third party information 

or documentation to establish the accuracy of statements on the 

application in order to determine eligibility or ineligibility of the 

household.

    (i) Mandatory verification.

    (A) Gross non-exempt income. The State agency must obtain 

verification of each household's gross non-exempt income prior to 

certification. Households certified under the expedited service 

processing standards at paragraph (a)(9) of this section are not subject 

to this requirement. Income does not need to be verified to the exact 

dollar amount unless the household's eligibility would be affected, 

since Food Distribution Program benefits are not reduced as income 

rises. If the eligibility worker is unable to verify the household's 

income, the worker must determine an amount to be used for certification 

purposes based on the best available information. Reasons for inability 

to verify income include failure of the person or organization providing 

the income to cooperate with the household and the State agency, or lack 

of other sources of verification.

    (B) Legal obligation and actual child support payments. The State 

agency must obtain verification of the household's legal obligation to 

pay child support, the amount of the obligation, and the monthly amount 

of child support the household actually pays. Documentation that 

verifies the household's legal obligation to pay child support, such as 

a court order, cannot be used to verify the household's actual monthly 

child support payments.

    (C) Medicare Part B medical insurance premium. The State agency must 

obtain verification of the household's payment of the Medicare Part B 

medical insurance premium. Documentation of this expense could include:

    (1) A copy of the current year Social Security benefit statement 

(SSA-4926-SM), or a similar statement provided to Railroad Retirement 

Board and Civil



[[Page 530]]



Service Retirement beneficiaries, which identifies the amount of the 

Medicare Part B premium withheld each month; or

    (2) A receipt for Medicare Part B premium payments paid directly to 

Medicare by the household.

    (ii) Verification of questionable information. Eligibility criteria 

other than income, including residency on or near the reservation, shall 

be verified prior to certification only if they are questionable. To be 

considered questionable, the information on the application must be 

inconsistent with statements by the applicant, inconsistent with other 

information on the application or previous applications, or inconsistent 

with other information received by the State agency. However, due to the 

difficulty in verifying whether a group of individuals is a household, 

State agencies shall generally accept the household's statement 

regarding food preparation and consumption.

    (iii) Responsibility for obtaining verification. The household has 

primary responsibility for providing documentary evidence or an 

acceptable collateral contact to support its income statements and to 

resolve any questionable information. However, the State agency shall 

assist the household in obtaining the needed verification. The State 

agency shall accept any reasonable documentary evidence provided by the 

household and shall be primarily concerned with how adequately the 

verification proves the statements on the application. The State agency 

shall also accept verification from collateral contacts so long as the 

collateral contacts can provide accurate third party verification. The 

State agency shall rely on the household to provide the name of the 

collateral contact. The State agency is not required to use a collateral 

contact designated by the household if the collateral contact cannot be 

expected to provide accurate third party verification. If the collateral 

contact designated by the household is unacceptable to the State agency, 

the State agency shall ask the household to designate another collateral 

contact, and the State agency shall document the casefile as to the 

reason the collateral contact was rejected and an alternate was 

requested. The State agency shall use collateral contacts, rather than 

documentary evidence, for verification if such verification is 

acceptable, and would result in better service to the household. For 

example, the household may be able to obtain a wage stub from the 

employer, but the State agency could call the employer the same day to 

provide the verification of income. Home visits shall be used as 

verification only if documentary evidence and collateral contacts cannot 

be obtained, and the State agency attempts to schedule the visit in 

advance with the household.

    (iv) Documentation. Casefiles must be documented to support a 

determination of eligibility or denial. Documentation shall be in 

sufficient detail to permit a reviewer to determine the reasonableness 

and accuracy of the determination.

    (v) Verification for recertification. At recertification, the State 

agency shall verify a change in income if the source has changed or the 

amount has changed by more than $50 per month since the last time the 

income was verified. State agencies may verify income which is unchanged 

or has changed by $50 per month or less, provided verification is, at a 

minimum, required when information is questionable as defined in 

paragraph (a)(6)(ii) of this section. All other changes reported at the 

time of recertification shall be subject to the same verification 

procedures as apply at initial certification. Unchanged information, 

other than income, shall not be verified at recertification unless the 

information is questionable as defined in paragraph (a)(6)(ii) of this 

section.

    (7) Processing standards. The State agency shall provide eligible 

households that complete the initial application process an opportunity 

to participate as soon as possible, but not later than seven calendar 

days excluding weekends and holidays after the application was filed. An 

application is filed the day the State agency receives an application 

containing the applicant's name and address and which is signed by 

either a responsible member of the household or the household's 

authorized representative.

    (8) Delays in processing. If the State agency cannot determine a 

household's



[[Page 531]]



eligibility within seven calendar days excluding weekends and holidays 

of the date the application was filed due to lack of verification as 

required in paragraph (a)(6) of this section, the State agency shall 

authorize the distribution of commodities to the household for one month 

pending verification. In order to certify the household pending 

verification, the information on the application form must be complete 

and indicate that the household will likely be eligible. No further 

distribution of commodities shall be made without completing the 

eligibility determination.

    (9) Expedited service. The State agency shall provide an opportunity 

to obtain commodities within one calendar day excluding weekends and 

holidays after the date the application was filed for those households 

with no income in the current month and also for those households which, 

in the judgment of the certifying agency, would likely be eligible and 

would otherwise suffer a hardship. The basis for this determination 

shall be recorded in the casefile. State agencies shall provide same day 

service, if possible, to households eligible for expedited service which 

would likely suffer a hardship if required to return to the office the 

next day. Warehouses or other distribution points need not be open 

during all certification hours to meet this need. However, accessibility 

to federally donated commodities by appropriate certification or other 

personnel should be established for households in immediate need. When 

State agencies can demonstrate a need, FNS may approve other expedited 

timeframes based on circumstances such as distance to warehouses or 

other distribution points. To expedite the certification of households 

in immediate need the State agency shall postpone the verification 

required under paragraph (a)(6) of this section. However, the State 

agency shall verify the household's identity and address through a 

collateral contact or readily available documentary evidence. If 

possible, the household's income statements should be verified at the 

same time. The State agency shall complete the verification for 

households certified on an expedited basis prior to the distribution of 

commodities to the household for any subsequent month.

    (10) Authorized representatives. The head of the household, spouse, 

or any other responsible member of the household may designate an 

authorized representative to act on behalf of the household in one or 

all of the following capacities:

    (i) Making application for commodities. When the head of the 

household or the spouse cannot make application, another household 

member may apply or an adult nonhousehold member may be designated in 

writing as the authorized representative for that purpose. The head of 

the household or the spouse should prepare or review the application 

whenever possible, even though another household member or the 

authorized representative will actually be interviewed. Adults who are 

nonhousehold members may be designated as authorized representatives for 

certification purposes only if they are sufficiently aware of relevant 

household circumstances.

    (ii) Obtaining commodities. An authorized representative of the 

household may be designated to obtain commodities. Designation shall be 

made at the time the application is completed except that the household 

may be permitted to designate an emergency authorized representative in 

the event that illness or other unforeseen circumstances prevent the 

household from otherwise obtaining commodities. Designation of an 

emergency authorized representative must be made in writing by a 

responsible member of the household. State agencies may distribute 

commodities to household members or authorized representatives 

presenting an identification card or other appropriate identification 

that satisfactorily identifies the member obtaining commodities.

    (b) Eligibility determinations--(1) Determining income. (i) The 

State agency shall take into account the income already received by the 

household during the certification period and any anticipated income the 

household and the State agency are reasonably certain will be received 

during the remainder of the certification period. If the amount of 

income that is anticipated is



[[Page 532]]



uncertain, that portion of the household's income that is uncertain 

shall not be counted by the State agency. For example, a household 

anticipating income from a new source, such as a new job or recently 

applied for public assistance benefits, may be uncertain as to the 

timing and amount of the initial payment. These monies shall not be 

anticipated by the State agency unless there is reasonable certainty 

concerning the month in which the payment will be received and in what 

amount. If the exact amount of the income is not known, that portion of 

it which can be anticipated with reasonable certainty shall be 

considered as income. In cases where the receipt of income is reasonably 

certain but the monthly amount may fluctuate, and the household's income 

is close to the income eligibility limit the State agency may elect to 

average income provided that such averaging does not disadvantage the 

household. Such averaging shall be based on income that is anticipated 

to be available to the household during the certification period. The 

State agency shall use income received in the past 30 days as an 

indicator of future income during the certification period unless 

changes in income have occurred or can be anticipated.

    (ii) Income anticipated during the certification period shall be 

counted as income only in the month it is expected to be received, 

unless the income is averaged.

    (iii)(A) Self-employment income which represents a household's 

annual support including the net profit from the sale of any capital 

goods or equipment related to the business shall be annualized over a 

12-month period, even if the income is received in only a short period 

of time. For example, self-employment income received by farmers shall 

be averaged over a 12-month period if the income represents the farmer's 

annual support.

    (B) Self-employment income which represents only a part of a 

household's annual support, including the net profit from the sale of 

any capital goods or equipment related to the business, shall be 

averaged over the period of time the income is intended to cover. For 

example, self-employed vendors who work only in the summer and 

supplement their income from other sources during the balance of the 

year shall have their self-employment income averaged over the summer 

months rather than a 12-month period.

    (C) For the period of time over which self-employment income is 

determined, the State agency shall add all gross self-employment income, 

exclude the cost of producing the self-employment income and divide the 

net self-employment income by the number of months over which the income 

will be averaged. The allowable costs of producing self-employment 

income include but are not limited to, the identifiable costs of labor, 

stock, raw materials, seed and fertilizer, interest paid to purchase 

income producing property, insurance premiums, and taxes paid on income 

producing property.

    (D) In determining net self-employment income, payments on the 

principal of the purchase price of income-producing real estate and 

capital assets, equipment, machinery, and other durable goods, net 

losses from previous periods, Federal, State, and local income taxes, 

money set aside for retirement purposes, and other work-related personal 

expenses (such as transportation to and from work) will not be allowable 

costs of doing business.

    (iv) The monthly net self-employment income shall be added to any 

other earned income received by the household. The total monthly earned 

income, less the 20 percent earned income deduction, shall then be added 

to all monthly unearned income received by the household.

    (v) Allowable costs for dependent care shall be subtracted from the 

household's total monthly income to determine net monthly income.

    (vi) The total net monthly income shall be compared to the income 

eligibility standard for the appropriate household size to determine the 

household's eligibility.

    (2) Certification periods. (i) The State agency shall establish 

definite periods of time within which households shall be eligible to 

receive benefits. Further eligibility shall be established upon a 

recertification based upon a newly completed application, an interview,



[[Page 533]]



and such verification as required by paragraph (a)(6)(v) of this 

section.

    (ii) Certification periods shall conform to calendar months. The 

first month in the certification period of initial applicants shall be 

the month in which eligibility is determined. For example, if a 

household submits an application in late January and the household is 

determined eligible on the fifth working day which falls in February, a 

six-month certification period would include February through July. Upon 

recertification, the certification period will begin with the month 

following the last month of the previous certification period.

    (iii) A household shall be assigned a certification period for as 

long a period as the household's circumstances are expected to remain 

sufficiently stable such that the household is expected to continue to 

meet the program's eligibility standards. In no event shall a 

certification period exceed one year.

    (3) Certification notices--(i) Notice of eligibility. If an 

application is approved, the State agency shall provide the household a 

written notice of eligibility and the beginning and ending dates of the 

certification period. Households certified on an expedited basis shall 

be advised that the subsequent month's eligibility will depend upon 

completion of the postponed verification.

    (ii) Notice of denial. If the application is denied, the State 

agency shall provide the household written notice explaining the basis 

for the denial, the household's right to request a fair hearing, and the 

telephone number and address of the person to contact for additional 

information. If there is an individual or organization available which 

provides free legal representation, the notice shall also advise the 

household of the availability of the service.

    (iii) Notice of adverse action. (A) Prior to any action to reduce or 

terminate a household's benefits within the certification period, except 

for households voluntarily switching program participation from the Food 

Distribution Program to the Food Stamp Program, State agencies shall 

provide the household timely and adequate advance notice before the 

adverse action is taken. The notice must be issued within 10 days of 

determining that an adverse action is warranted. The adverse action must 

take effect with the next scheduled distribution of commodities that 

follows the expiration of the advance notice period, unless the 

household requests a fair hearing.

    (B) In State agencies that have elected joint public assistance or 

general assistance and Food Distribution processing, the notice of 

adverse action shall be considered timely if the advance notice period 

conforms to that period of time defined by the State agency as an 

adequate notice period for its public or general assistance caseload, 

provided that the period includes at least 10 days from the date the 

notice is mailed to the date upon which the action becomes effective. In 

circumstances other than joint processing, the advance notice shall be 

considered timely if the advance notice period includes at least 10 days 

from the date the notice is issued to the date upon which the action 

becomes effective.

    (C) The notice of adverse action must include the following in 

easily understandable language:

    (1) The reason for the adverse action;

    (2) The date the adverse action will take effect;

    (3) The household's right to request a fair hearing and continue to 

receive benefits pending the outcome of the fair hearing;

    (4) The date by which the household must request the fair hearing;

    (5) The liability of the household for any overissuances received 

while awaiting the outcome of the fair hearing, if the fair hearing 

official's decision is adverse to the household;

    (6) The telephone number and address of someone to contact for 

additional information; and

    (7) The telephone number and address of an individual or 

organization that provides free legal representation, if available.

    (D) The State agency shall continue distribution of commodities to 

the household after the end of the adverse notice period if the 

household requests a fair hearing during the advance notice period.



[[Page 534]]



    (E) If the State agency determines that a household received more 

USDA commodities than it was entitled to receive, it must establish a 

claim against the household in accordance with Sec. 253.9. The initial 

demand letter for repayment must be provided to the household at the 

same time the notice of adverse action is issued. It may be combined 

with the notice of adverse action.

    (c) Reporting changes. (1) Certified households are required to 

report changes in household composition and income which would 

necessitate a change in the determination of eligibility. To facilitate 

reporting changes in income each certified household shall be advised at 

the time of certification what the maximum monthly income limit, as 

defined in Sec. 253.6(e)(1), is for its size household, and shall be 

required to report any change in income that goes above that limit to 

the certification office within ten days after the change becomes known 

to the household. Households must also report within ten days when cash 

on hand, money in checking or savings accounts, savings certificates, 

stocks, or bonds, or other readily negotiable instruments exceeds 

$1,750. The State agency shall develop the procedures for when and how 

changes in household circumstances are reported. Changes reported over 

the telephone or in person shall be acted on in the same manner as those 

reported in writing.

    (2) If the State agency determines that the household is no longer 

eligible or reduces the amount of commodities due the household because 

the household has lost a member or members, the State agency shall 

provide the household with a notice of adverse action not later than ten 

days after the change is reported. If the reported change increases the 

amount of commodities due the household, the household shall be notified 

that the increase shall be effective not later than the month following 

the date the change was reported.

    (d) Recertification. (1) The State agency shall develop a procedure 

for notifying the household prior to or shortly after the end of its 

certification period that the household must reapply and be recertified 

for continued participation. Households shall also be notified of the 

date upon which termination from participation will be effective should 

the household fail to reapply before the expiration of the certification 

period.

    (2) The State agency shall approve or deny a household's application 

for recertification and notify the household of that determination prior 

to the expiration of the household's current certification period. 

Households applying for recertification in the last month of the current 

certification period must be provided an opportunity to obtain commodity 

distribution on an uninterrupted basis.

    (3) The State agency shall continue distribution of commodities to 

the household denied at the point of recertification if the household 

timely requests a fair hearing.

    (e) Controls for dual participation--(1) Prohibition on dual 

participation. No household shall be allowed to participate 

simultaneously in the Food Stamp Program and Food Distribution Program. 

The State agency shall inform each applicant household of this 

prohibition and shall develop a method to detect dual participation. The 

method developed by the State agency shall, at a minimum, employ lists 

of currently certified households provided by and provided to the 

appropriate food stamp agency on a monthly basis. The State agency may 

also employ computer checks, address checks and telephone calls to 

prevent dual participation. The State agency shall coordinate with the 

appropriate food stamp agency or agencies in developing controls for 

dual participation.

    (2) Choice of programs. Households eligible for either the Food 

Stamp Program or Food Distribution Program on reservations on which both 

programs are available may elect to participate in either program. Such 

households may elect to participate in one program, and subsequently 

elect the other at the end of the certification period. Households may 

also elect to switch from one program to the other program within a 

certification period only by terminating their participation, and



[[Page 535]]



notifying the State agency of their intention to switch programs. 

Households certified in either the Food Distribution or Food Stamp 

Program on the first day of the month can only receive benefits in the 

program for which they are currently certified during that month. At the 

point the household elects to change programs the household should 

notify the State agency of its intent to switch programs, and should 

file an application for the program in which it wishes to participate. 

Households voluntarily withdrawing from one program with the intent of 

switching to the other shall have their eligibility terminated for the 

program in which they are currently certified on the last day of the 

month in which the household notifies the State agency of its intent to 

change programs. Entitlement in the program for which a household is now 

filing an application, if all eligibility criteria are met, would begin 

in the month following the month of termination in the previous program.

    (f) Treatment of disqualified household members. (1) The following 

are not eligible to participate in the Food Distribution Program:

    (i) Household members disqualified from the Food Distribution 

Program for an intentional program violation under Sec. 253.8. These 

household members may participate, if otherwise eligible, in the Food 

Distribution Program once the period of disqualification has ended.

    (ii) Household members disqualified from the Food Stamp Program for 

an intentional program violation under Sec. 273.16 of this chapter. 

These household members may participate, if otherwise eligible, in the 

Food Distribution Program once the period of disqualification under the 

Food Stamp Program has ended. The State agency must, in cooperation with 

the appropriate food stamp agency, develop a procedure that ensures that 

these household members are identified.

    (iii) Households disqualified from the Food Distribution Program for 

failure to pay an overissuance claim. The circumstances under which a 

disqualification is allowed for such failure are specified in FNS 

Handbook 501.

    (2) During the time a household member is disqualified, the 

eligibility and food distribution benefits of any remaining household 

members will be determined as follows:

    (i) Resources. The resources of the disqualified member will 

continue to count in their entirety to the remaining household members.

    (ii) Income. A pro rata share of the income of the disqualified 

member will be counted as income to the remaining members. This pro rata 

share is calculated by dividing the disqualified member's earned (less 

the 20 percent earned income deduction) and unearned income evenly among 

all household members, including the disqualified member. All but the 

disqualified member's share is counted as income to the remaining 

household members.

    (iii) Eligibility and benefits. The disqualified member will not be 

included when determining the household's size for purposes of assigning 

food distribution benefits to the household or for purposes of comparing 

the household's net monthly income with the income eligibility 

standards.

    (g) Joint processing PA/GA. (1) State agencies which are responsible 

for and administer both the Food Distribution and public assistance (PA) 

or general assistance (GA) programs on Indian reservations may allow a 

household to apply for the Food Distribution Program at the same time 

the household applies for PA or GA benefits. However, while PA 

households are categorically eligible, GA households except for those 

households in GA programs which have been determined by FNS to have 

criteria of need the same as, or similiar to those under federally aided 

public assistance programs as provided for in Sec. 253.6(c)(2) shall 

have their eligibility for commodities based solely on Food Distribution 

eligibility criteria. All criteria provided in this paragraph (f), are 

applicable to State agencies which administer both the Food Distribution 

and assistance programs and which elect joint processing. Under joint 

processing, the State agency shall use joint application forms that 

contain all the information needed to determine eligibility for 

commodities or shall attach a form for the other needed information.



[[Page 536]]



    (2) The State agency shall process all applications for PA or GA as 

applications for the Food Distribution Program as well, unless the 

household clearly indicates on a space on the application that the 

household does not want commodities. The State agency shall conduct a 

single interview for PA or GA and Food Distribution Program eligibility, 

unless the State agency is unable to do so within the Food Distribution 

Program processing standards specified in paragraphs (a)(7) and (a)(9)of 

this section. In such cases the State agency shall provide separate 

certification for PA or GA and Food Distribution Program eligibility.

    (3) The State agency may verify those factors of eligibility which 

must be verified for PA or GA, under PA or GA rules, but must follow the 

Food Distribution Program rules for all other factors.

    (4) PA households have the same reporting requirements as any other 

food distribution household. PA households which report a change in 

circumstances to the PA worker shall be considered to have reported the 

change for food distribution purposes. All of the requirements 

pertaining to reporting changes for PA households shall be applied to GA 

households in project areas where GA and food distribution cases are 

processed jointly.

    (5) The State agency must follow all Food Distribution Program 

timeliness rules for certification of households for the Food 

Distribution Program.

    (h) Fair hearing--(1) Availability of hearings. The State agency 

shall provide a fair hearing to any household aggrieved by any action of 

the State agency which affects the participation of the household in the 

Food Distribution Program.

    (2) Timely action on hearings--(i) Time frames for the State agency. 

The State agency must conduct the hearing, arrive at a decision, and 

notify the household of the decision within 60 days of receipt of a 

request for a fair hearing. The fair hearing decision may result in a 

change in the household's eligibility or the amount of commodities 

issued to the household based on household size. The State agency must 

implement these changes to be effective for the next scheduled 

distribution of commodities following the date of the fair hearing 

decision. If the commodities are normally made available to the 

household within a specific period of time (for example, from the first 

day of the month through the tenth day of the month), the effective date 

of the disqualification will be the first day of that period.

    (ii) 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.

    (3) Notification of right to request hearing. At the time of 

application, each household shall be informed 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. If there is an 

individual or organization available which provides free legal 

representation, the household shall also be informed of the availability 

of that service. Hearing procedures shall be published by the State 

agency and made available to any interested party.

    (4) Time period for requesting hearing. A household shall be allowed 

to request a hearing on any action by the State agency which occurred in 

the prior 90 days or which affects current benefits.

    (5) Request for hearing. A request for a hearing is any clear 

expression, oral or written, by the household or its representative to 

the State agency that it wishes to present its case to a higher 

authority. The freedom to make such a request shall not be limited or 

interfered with in any way. 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.

    (6) Denial or dismissal of request for hearing. The State agency 

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

    (i) The request is not received within the time period specified in 

paragraph (g)(4) of this section;



[[Page 537]]



    (ii) The request is withdrawn in writing by the household or its 

representative; or

    (iii) The household or its representative fails, without good cause, 

to appear at the scheduled hearing.

    (7) Notification of time and place of hearing. The time, date and 

place of the hearing shall be convenient to the household. At least 15 

days prior to the hearing, advance written notice shall be provided to 

all parties involved to permit adequate preparation of the case. The 

notice shall:

    (i) Advise the household or its representative of the name, address, 

and the phone number of the person to notify in the event it is not 

possible for the household to attend the scheduled hearing.

    (ii) 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.

    (iii) 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.

    (iv) Explain that the household or representative may examine the 

casefile prior to the hearing.

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

official(s), designated by the State agency, who does not have any 

personal interest or involvement in the case and who was not directly 

involved in the initial determination of the action which is being 

contested. The hearing official shall:

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

    (ii) Ensure 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 ensure an orderly hearing; and

    (v) Render a hearing decision in the name of the State agency, in 

accordance with paragraph (g)(11) of this section, which will resolve 

the dispute.

    (9) Attendance at hearing. The hearing shall be attended by a 

representative of the State agency which initiated the action being 

contested and by the household and/or its representative. The hearing 

may also be attended by friends or relatives of the household upon 

household consent.

    (10) Conduct of 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 manner that makes the household 

feel most at ease. The household or its representative must be given 

adequate opportunity to:

    (i) 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 casefile, including the application forms 

and documents of verification used by the State agency shall be made 

available, provided the confidential information is protected from 

release. The State agency shall provide a free copy of the relevant 

portions of the casefile if requested by the household or its 

representative. 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.

    (ii) Present the case or have it presented by a legal counsel or 

other person.

    (iii) Bring witnesses.

    (iv) Advance arguments without undue interference.

    (v) Question or refute any testimony or evidence, including an 

opportunity to confront and cross-examine adverse witnesses.

    (vi) Submit evidence to establish all pertinent facts and 

circumstances in the case.

    (11) Hearing decisions. (i) Decisions of the hearing officials shall 

comply with Federal law or 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



[[Page 538]]



papers and requests filed in the proceeding, shall constitute the 

exclusive record for a final decision by the hearing official.

    (ii) A decision by the hearing official shall be binding on the 

State agency and shall summarize the facts of the case, specify the 

reasons for the decision and identify the supporting evidence and the 

pertinent FNS regulations. The decision shall become a part of the 

record.

    (iii) Within 10 days of the date the fair hearing decision is 

issued, the State agency must issue a notice to the household advising 

it of the decision.

    (A) If the decision upheld the adverse action by the State agency, 

the notice must advise the household of the right to pursue judicial 

review.

    (B) If the decision upheld a disqualification, the notice must also 

include the reason for the decision, the date the disqualification will 

take effect, and the duration of the disqualification (that is, 12 

months; 24 months; or permanent). The State agency must also advise any 

remaining household members if the household's benefits will change, or 

if the household is no longer eligible as a result of the 

disqualification.

    (iv) The State agency must revise the demand letter for repayment 

issued previously to the household to include the value of all 

overissued commodities provided to the household during the appeal 

process, unless the fair hearing decision specifically requires the 

cancellation of the claim. The State agency must also advise the 

household that collection action on the claim will continue, in 

accordance with FNS Handbook 501, unless suspension is warranted.

    (12) Agency conferences. (i) The State agency shall offer agency 

conferences to households which request an immediate resolution by a 

higher authority of a denial of eligibility for food distribution 

benefits. The State agency may also offer agency conferences to 

households adversely affected by any agency action. The State agency 

shall advise households that use of an agency conference is optional and 

that such use 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 supevisor and/or the agency director, as well as 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 if requested by the household.

    (ii) An agency conference for households requesting an immediate 

resolution by a higher authority of an eligibility issue shall be 

scheduled within four working days of the request unless the household 

requests that it be scheduled later or states that it does not wish to 

have an agency conference.



(Approved by the Office of Management and Budget under control number 

0584-0071)



(44 U.S.C. 3506)



[44 FR 35928, June 19, 1979, as amended at 47 FR 746, Jan. 7, 1982. 

Redesignated and amended by Amdt. 1, 47 FR 14137, Apr. 2, 1982; 64 FR 

73383, Dec. 30, 1999; 65 FR 47833, Aug. 4, 2000]