Colorado WIC Program Policies and Procedures Section 11: Civil Rights Revised: 10/01/2018

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Fair Hearing Policy and Procedures for Applicant/Participant Appeals

Policy: The Colorado WIC Program and its contracting agencies must make a fair hearing available to any individual whose application for benefits or services has been denied, reduced, or terminated, or who is otherwise aggrieved by agency action. Participants must be advised of their right to a fair hearing and the procedure to follow to obtain a fair hearing.

Once requested, a fair hearing will be conducted in accordance with the Fair Hearing Procedures outlined below.

Regulations: 7 CFR 246.9, Colorado Administrative Procedures Act, 24-4-105 and 24-4-106 C.R.S.

Procedures/Additional Guidance:

Definition of a Fair Hearing A Fair Hearing (hearing) allows individuals, who file an appeal concerning one of the actions listed in Subsection B of this policy, an opportunity to have their case heard by an impartial Administrative Hearing Official (hearing officer).

These hearing procedures provide a mechanism to ensure that:  Applicants/participants have an objective and impartial avenue of redress when they feel they have been denied benefits, treated unfairly, or have had an adverse action taken against them;  Program standards, policies, procedures and regulations are being applied without prejudice;  The services and benefits are being provided fairly;  Certain services are retained pending the outcome of a hearing and;  Certain services are restored based on the outcome of a hearing.

Actions Subject to Fair Hearing Applicants/participants may file an appeal when the following actions occur:  Denial of participation;  Termination of benefits due to ineligibility;  Disqualification based on intentional program abuse as defined in the Participant Sanction Policy and/or;  Claims that are assessed against an individual who has been improperly issued benefits or has improperly obtained benefits.

Procedures for a Fair Hearing  Notification of Action Participants will be notified of an adverse action at least fifteen (15) days prior to the effective date of the action, unless the 15 days falls after the end of the participant’s certification period. If this period is less than 15 days, participants should be given benefits for the remaining days of their certification period. Participants may not receive benefits after the end of their certification period. Nor may participants receive benefits if the adverse action is denial of certification on the Program.

Written notification of adverse actions will be provided stating the action, cause(s) for the action, the effective date of the action, the right to file an appeal, and the method by which a hearing may be requested.

 Appealing an Action  An appeal is any clear expression by the individual, the individual’s parent, caregiver, or other representative, that he or she desires an opportunity to present his or her case to a higher authority. A request for an appeal can be made to the State WIC Program or local WIC agency.  A disqualified or terminated participant must file an appeal within fifteen (15) calendar days of receiving the notice of action to continue receiving benefits until the hearing officer reaches a decision or the certification period expires, whichever occurs first. A participant whose certification period has expired cannot have benefits continue through the appeal.  An applicant/participant must file an appeal within sixty (60) calendar days of the date the notice of action is mailed or provided to the applicant/participant.

Colorado WIC Program Policies and Procedures Section 11: Civil Rights Revised: 10/01/2018

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 An appeal will be denied or dismissed if: - the appeal is not received within sixty (60) calendar days from the date the notice is mailed or provided; - the appeal is withdrawn in writing by the applicant/participant or representative; and/or - the applicant/participant or representative failed, without good cause (as determined by the hearing officer) to appear at the scheduled hearing.

 The Hearing - General Rules and Procedures  Upon receipt of an appeal, the State WIC Program shall notify the applicant/participant, in writing, that it has received the appeal. A copy of the hearing procedures and a confirmation notice will be sent to the applicant/ participant. This confirmation must be signed by the applicant/participant and accompanied by a list of the specific action (s) being appealed. The confirmation of appeal must be returned to the State WIC Program within seven (7) calendar days of receipt.  The applicant/participant will receive a minimum of ten (10) calendar days’ advance written notice of the time and place of the hearing. At the time of the written notice the State WIC Office will notify the applicant/participant of their right to: - examine, prior to or during the hearing, the documents and records presented to support the decision under appeal; - be assisted or represented by an attorney or other persons; - bring witnesses; - advance arguments without undue interference; - question or refute any testimony or evidence, including an opportunity to confront and cross- examine adverse witnesses - submit evidence to establish all pertinent facts and circumstances in the case.  Hearing will be held within twenty-one (21) calendar days from the date the State WIC Program or local WIC agency received the appeal.  The Colorado Department of Public Health and Environment (Department) will provide a hearing officer, an impartial decision maker, whose decision as to the validity of the action shall rest solely on the evidence presented at the hearing, federal regulations and the Program’s policies and procedures governing the Program.  The applicant/participant shall have the opportunity to present their case and at least one opportunity to reschedule the hearing date upon request.  The hearing shall be conducted at the State level in accordance with the provisions of §24-4-105 C.R.S.

 Fair Hearing Decision  Within forty-five (45) calendar days of the receipt of the appeal, the hearing officer must issue an initial Fair Hearing Decision (decision) providing a summary of the facts of the case, specifying the reasons for the decision, and identifying the supporting evidence and the pertinent regulations or policy.  The initial decision of the hearing officer shall be submitted, in writing, to the Executive Director of the Department. A copy of the decision will also be provided to the Program and the applicant/participant.  The applicant/participant or Program may file a written appeal of the initial decision with the Department’s Executive Director within fifteen (15) calendar days of receipt of the initial decision. The Executive Director may affirm, modify, or reverse the initial decision in accordance with §24-4-105 C.R.S.  If an appeal is not received within fifteen (15) calendar days, the initial decision of the hearing officer will be adopted by the Executive Director and shall constitute the final action pursuant to §24-4-105 C.R.S.  If the final decision is in favor of the applicant/participant, and benefits were denied or discontinued, benefits shall begin immediately.  If the final decision concerns disqualification, and is in favor of the Program, the participant will be terminated as soon as administratively feasible.  If the final decision regarding repayment of benefits by the participant is in favor of the Program, efforts to collect the claim will resume immediately.  The effective date of the action is the date the decision is issued to the applicant/participant.

 Withdrawal or Default of an Appeal

Colorado WIC Program Policies and Procedures Section 11: Civil Rights Revised: 10/01/2018

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 A withdrawal of an appeal occurs when the applicant/participant states, in writing, that he or she no longer wishes a hearing.  A default occurs when the applicant/participant fails to appear at the hearing without good cause as determined by the hearing officer or the applicant/ participant cannot be located through his or her last address of record.

Judicial Review If the Department’s final decision is rendered against the applicant/participant, judicial review may be pursued in accordance with §24-4-106 C.R.S.

QUESTIONS AND ANSWERS ABOUT THE FAIR HEARING PROCEDURES FOR APPLICANT/PARTICIPANT

1. Where can I request a fair hearing? Requests for Fair Hearing may be made to the local agency administering the Program or directly to: Colorado Department of Public Health and Environment WIC Director 4300 Cherry Creek Drive South Denver, CO 80246-1530 2. Is there anything I should do prior to requesting a Fair Hearing?

You might find it helpful to discuss with your local or state program representative your feelings and any questions or concerns that you have before you make a decision to request a Fair Hearing. Questions or concerns can often be answered or addressed prior to a Fair Hearing. 3. Who pays for a Fair Hearing?

The Colorado Department of Public Health and Environment (CDPHE) will pay for the expenses of the hearing officer and, if necessary, the stenographer. The CDPHE will also pay for an interpreter if one is needed. 4. Where will the hearing be held?

The hearing must be held at a time and place convenient to the person making the request. 5. Who conducts the hearing?

A hearing officer who is not involved in the dispute will conduct the hearing. He or she will be designated and paid for by the CDPHE. 6. Who is to be at the hearing?

Besides the hearing officer and possibly a stenographer, the applicant or participant requesting the hearing or his or her representative, such as a relative, friend, legal counsel, or other spokesperson, witnesses, and State WIC staff. (Any person presenting material will be under oath or affirmation and all testimony will be recorded.) 7. How is the hearing conducted?

All hearings conducted in accordance with the provisions of Colorado Administrative Procedures Act §24-4-105 and the Code of Federal Regulations 7 Part 246.

Both the individual requesting the hearing and the representative of the local WIC agency or State WIC Program shall have the right to examine and present evidence, present and cross-examine any witness, make arguments, and question or refute evidence. The person requesting the hearing also has the right to examine all documents and records presented to support the decision under appeal prior to the hearing, to be assisted or represented by an attorney or other persons, and bring witnesses.

Colorado WIC Program Policies and Procedures Section 11: Civil Rights Revised: 10/01/2018

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QUESTIONS AND ANSWERS ABOUT THE FAIR HEARING PROCEDURES FOR APPLICANT/PARTICIPANT Continued 8. What are the responsibilities of an applicant/participant when requesting a Fair Hearing?

Applicants/participants are responsible for:  Requesting assistance from CDPHE or the local agency in submitting a Fair Hearing request;  Requesting the Fair Hearing, verbally or in writing, within the sixty (60) day period; or  Requesting the Fair Hearing, verbally or in writing, within the fifteen (15) day period if services are to be considered for continuation;  Requesting a translator when it is necessary to understand the participant in the Fair Hearing.  Preparing for the Fair Hearing—examining all material, asking witnesses to be present, presenting testimony, etc.;  Attending the Fair Hearing; OR  Sending a written notice stating that a Fair Hearing is no longer desired. OR  Calling in or sending a written reason explaining why they were not at the scheduled hearing;  Keeping the CDPHE or the local agency informed of any address changes;  If desired, submitting a request for appeal no later than twenty (20) days after the Fair Hearing decision becomes effective. 9. What are the responsibilities of the local agency when a participant/applicant requests fair hearing?

These responsibilities include:  Informing individuals of their right to a fair hearing when application for Program  benefits or services is made and informing individuals of the availability of a Program representative to discuss questions, concerns, and to provide further information;  Informing individuals of denial, termination, suspension, or reduction in services, fifteen (15) days before the change in services occur, for the WIC Program;  Assisting individuals in filing a request for a fair hearing and in completing the Acknowledgement and Confirmation of a Fair Hearing Request (if assistance is requested).  Forwarding the request for a fair hearing to the CDPHE within twenty-four (24) hours;  Supplying CDPHE with a written statement describing the reason why the person is requesting a fair hearing, the reason why services have been denied, terminated, or reduced, and any other material relevant to the request including copies of participant notices and other materials relevant to the request.  Preparing and submitting background information on the request to the CDPHE;  Providing the person requesting information with any information that was used in determining eligibility or in changing benefits;  Assisting the CDPHE in finding a time and place convenient to the individual for a fair hearing;  Being present and giving testimony at the fair hearing;  Complying with the fair hearing decision.

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Fair Hearing Procedures Timeline and Flowchart