[Code of Federal Regulations]

[Title 45, Volume 1]

[Revised as of October 1, 2006]

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

[CITE: 45CFR32.5]



[Page 104-105]

 

                        TITLE 45--PUBLIC WELFARE

 

                    SUBTITLE A--DEPARTMENT OF HEALTH

                           AND HUMAN SERVICES

 

PART 32_ADMINISTRATIVE WAGE GARNISHMENT--Table of Contents

 

Sec.  32.5  Hearing.



    (a) In general. Upon timely written request of the debtor, the 

Secretary shall provide a hearing, which at the Department's option may 

be oral or written, concerning the existence or amount of the debt, or 

the terms of a repayment schedule established other than by written 

agreement under Sec.  32.4(a)(3)(ii).

    (b) Request for hearing. (1) The request for a hearing must be 

signed by the debtor, state each issue being disputed, and identify and 

explain with reasonable specificity all facts and evidence that the 

debtor believes supports the debtor's position. Supporting documentation 

identified by the debtor should be attached to the request.

    (2) Effect of timely request. Subject to paragraph (j) of this 

section, if the debtor's written request is received on or before the 

15th business day following the mailing of the written notice required 

under this part, a withholding order shall not be issued under Sec.  

32.6 until the debtor has been provided the requested hearing and a 

decision in accordance with paragraphs (g) and (h) of this section has 

been rendered.

    (3) Failure to timely request a hearing. If the debtor's written 

request is received after the 15th business day following the mailing of 

the written notice required under this part, the Secretary shall provide 

a hearing to the debtor. However, the Secretary shall not delay the 

issuance of a withholding order unless the Secretary determines that the 

delay in submitting such request was caused by factors beyond the 

control of the debtor, or the Secretary receives information that the 

Secretary determines justifies a delay or cancellation of the 

withholding order.

    (c) Oral hearing. (1) For purposes of this section, a debtor shall 

be provided a reasonable opportunity for an oral hearing when the 

hearing official determines that the issues in dispute cannot be 

resolved by review of the documentary evidence, such as when the 

validity of the claim turns on the issue of credibility or veracity.

    (2) If the hearing official determines an oral hearing is 

appropriate, the hearing official will establish the date, time and 

location of the hearing. At the debtor's option, the oral hearing may be 

conducted in person or by telephone conference. The hearing official 

will notify the debtor of the date, time, and in the case of an in-

person hearing, the location of the hearing. All travel expenses 

incurred by the debtor in connection with an in-person hearing will be 

borne by the debtor.

    (d) Paper hearing. (1) If the hearing official determines an oral 

hearing is not required by this section, the hearing official shall 

afford the debtor a paper hearing, that is, the issues in dispute will 

be decided based upon a review of the written record.

    (2) The hearing official shall notify the debtor of the deadline for 

the submission of additional evidence if necessary for a review of the 

record.

    (e) Burden of proof. (1) The Secretary has the initial burden of 

proving the existence or amount of the debt.



[[Page 105]]



    (2) Thereafter, if the debtor disputes the existence or amount of 

the debt, the debtor must present by a preponderance of the evidence 

that no debt exists or that the amount is incorrect. When challenging 

the terms of a repayment schedule, the debtor must establish by a 

preponderance of the evidence that the terms of the repayment schedule 

are unlawful, would cause financial hardship to the debtor, or that 

collection of the debt may not be pursued due to operation of law.

    (f) Record. The hearing official shall maintain a summary record of 

any hearing provided under this part. A hearing is not required to be a 

formal evidentiary-type hearing, but witnesses who testify in an oral 

hearing must do so under oath or affirmation.

    (g) Date of decision. (1) The hearing official shall issue a written 

decision, as soon as practicable, but no later than sixty (60) days 

after the date on which the request for the hearing was received by the 

Department.

    (2) If the hearing official is unable to provide the debtor with a 

hearing and render a decision within 60 days after the receipt of the 

request for such hearing:

    (i) A withholding order may not be issued until the hearing is held 

and a decision is rendered; or

    (ii) A withholding order previously issued to the debtor's employer 

must be suspended beginning on the 61st day after the receipt of the 

hearing request and continuing until a hearing is held and a decision is 

rendered.

    (h) Content of decision. The written decision shall include:

    (1) A summary of the facts presented;

    (2) The hearing official's findings, analysis, and conclusions; and

    (3) The terms of any repayment schedule, if applicable.

    (i) Final agency action. The hearing official's decision will be the 

final agency action for the purposes of judicial review under the 

Administrative Procedure Act. 5 U.S.C. 701 et seq.

    (j) Failure to appear. In the absence of good cause shown, a debtor 

who fails to appear at a hearing will be deemed as not having timely 

filed a request for a hearing.