3.609.71 Hearing Procedures

3.609.711 State Level Fair Hearing Procedures The procedures in this section apply to all hearings in front of the OAC. One or more persons from the Colorado Department of Personnel and Administration, Office of Administrative Courts (OAC), are appointed to serve as ALJs for the state department. All hearings described in this section shall be conducted in accordance with section 24-4-105, C.R.S. A. The State Administrative Law Judge shall, in preparation for the hearing, review the reasons for the decision under appeal and be prepared to interpret applicable Departmental rules and/or official written county policies governing the Colorado Works program and pertaining to the issue under appeal. B. The county department shall forward copies of its applicable Colorado Works policies and any subsequent amendments, including effective dates, to the OAC. Clients appealing a county action shall be provided reasonable opportunity to examine the county's policies. C. When legal counsel does not represent the client and/or the department, the ALJ shall assist in bringing forth all relevant evidence and issues relating to the appeal. D. Upon receipt by the OAC of an appeal request, OAC assigns a case number. The OAC sets a hearing date at least ten (10) days from the date the appeal was requested, and sends a letter by first class or certified mail, or by email through the electronic filing system to the appellant and the county department notifying them of the date, time, and place of the hearing. 1. The appellant is told that if these arrangements are not satisfactory, he or she must notify the OAC. An ALJ will decide if good cause exists, and whether the date, time, and/or place of the hearing will be changed. 2. An information sheet shall be enclosed to explain the hearing procedures to the appellant. The information sheet informs the appellant that: he or she has the right to representation retained at his or her own expense, such as legal counsel, a relative, a friend, or another spokesperson, or he or she may represent himself or herself under section 26-2-127(1)(a)(iv), C.R.S.; the appellant or his or her representative has the right to examine all materials to be used at the hearing, before and during the hearing. 3. For all hearings except IPV ADH hearings, the information sheet shall also include a notice that failure to appear at the hearing as scheduled, without having secured a proper extension in advance, or without having shown good cause for failure to appear, shall constitute abandonment of the appeal and cause a dismissal thereof. Pursuant to section 3.609.5.M.2-3., failure to appear does not result in a dismissal of an ADH hearing. 4. If OAC sets the hearing forty-five (45) days or more from the date of the notice of hearing, the county department/agency shall, within fifteen (15) days but no later than thirty (30) days prior to the hearing, prepare and mail a hearing packet to the appellant with a copy to OAC. If the hearing is set less than 45 days from the date of the notice of hearing, the county department/agency shall, within five (5) days but no later than ten (10) days prior to the hearing, prepare and mail the hearing packet. The hearing packet shall contain the following information: a. The reasons for the decision of the county department and a specific explanation of each factor involved, such as the amount of excess income or residence factors; b. The specific state rules governing the Colorado Works program or county policy on which the decision is based with a numeric reference to each such rule, including the appropriate Code of Colorado Regulations (C.C.R.) cites; c. Notice that the county department will assist him or her by providing relevant documents from the case file for his or her claim, if he or she so desires, and that he or she has the opportunity to examine rules and other materials to be used at the hearing concerning the basis of the county decision. 5. Information that the appellant or his or her representative does not have an opportunity to see shall not be made available as a part of the hearing record or used in a decision on an appeal. No material made available for review by the ALJ may be withheld from review by the appellant or his or her representative. 6. In Colorado Works program appeals, the ALJ has twenty (20) calendar days from the hearing date to arrive at an initial decision. Once an initial decision is rendered, the OAC immediately sends the case and the initial decision to the State Department, Office of Appeals. The Office of Appeals serves the initial decision on the parties via first class mail and provides for an opportunity for the parties to file exceptions to the initial decision prior to the Office of Appeals issuing a final agency decision. 7. The initial decision shall not be implemented pending review by the Office of Appeals and entry of a final agency decision. All final agency decisions on these appeals shall be made within ninety (90) calendar days from the date the request for hearing is received. E. When the client has had a county conference and wishes to appeal the county department's action to the OAC, the following procedures shall be followed: 1. As part of the local conference the client is informed that if he or she wishes to appeal to the OAC for a hearing, the county department shall provide relevant documents from the case file for the client’s claim, if he or she so desires, and that he or she may have the opportunity to examine materials as described in the section 3.609. 2. The county department shall forward a copy of the decision being appealed and a copy of the written notification given to the client to the OAC. 3. A copy of the OAC’s notice to the client setting a date for the hearing is forwarded to the county department. The county department shall provide the client with a hearing packet in accordance with section 3.609.711.D.3. 4. If the client indicates to the county department that he or she desires to withdraw the appeal, the county shall attempt to obtain a statement to that effect in writing and forward it to the OAC. 5. If a client has legal counsel or another authorized representative for the appeal, the county department will not discuss the merits of the appeal or the question of whether or not to proceed with it with the client unless the discussion is in the presence of, or with the permission of, such counsel or such other authorized representative. 6. If the county department learns that legal counsel will represent the client, the county department shall make every effort to ensure that it, too, is represented by an attorney at the hearing. The county department may be represented by an attorney in any appeal that it considers such representation desirable. 7. If the appellant needs interpretation services, the county department shall arrange to have present at the hearing a certified interpreter who will be sworn to translate correctly. 8. The fact that an appellant and the county department have been notified that a hearing will be held does not prevent the county department from reviewing the case and considering any new factors which might change the status of the case, or taking such action as may be indicated to reverse its decision or otherwise settle the issue. Any change, which results in a voiding of the cause of appeal, shall be immediately reported to the OAC. 9. Upon receipt of notice of a state hearing on an appeal, the county department shall arrange for a suitable hearing room appropriate to accommodate the number of persons, including witnesses, who are expected to be in attendance, taking into consideration such factors as privacy; absence of distracting noise; and the need for table, chairs, electrical outlets, adequate lighting and ventilation, and conference telephone facilities. F. Telephonic hearings may be conducted as an alternative to in-person hearings unless otherwise requested by any of the parties. All applicable provisions of the in-person hearing procedures will apply, such as the right to be represented by counsel, the right to examine and cross-examine witnesses, the right to examine the contents of the case file, and the right to have the hearing conducted at a reasonable time and date. G. The county department shall have the burden of proof, by a preponderance of the evidence, to establish the basis of the ruling being appealed. Every party to the proceeding shall have the right to present his or her case or defense by verbal and documentary evidence, to submit rebuttal evidence, and to conduct such cross-examination as may be required for a full and true disclosure of the facts. Subject to these rights and requirements, where a hearing is expedited and the interests of the parties will not be subsequently prejudiced thereby, the ALJ may receive all or part of the evidence in written form or by verbal stipulations. H. The following provisions govern the procedure at state hearings before the ALJ: 1. The hearing is closed to the public however, any person or persons whom the appellant wishes to appear for or with him or her may be present, and, if requested by the appellant and in the record, such hearing may be public; 2. The purpose of the hearing is to determine the pertinent facts in order to arrive at a fair and equitable decision in accordance with the rules of the state department. In arriving at a decision, only the evidence and testimony introduced at the hearing is considered by the ALJ. However, in circumstances when it is shown at the hearing that medical or other evidence could not, for good cause, be obtained in time for the hearing, the ALJ may permit the introduction of such evidence after the hearing. The opposing party must also be furnished with a copy of this new evidence and must have the opportunity to controvert or otherwise respond to it. Delays in rendering the initial decision will be attributed to the party requesting that the ALJ hear additional evidence after the hearing; 3. Although the hearing is conducted on an informal basis and an effort is made to place all the parties at ease, it is essential that the evidence be presented in an orderly manner so as to result in an adequate record; 4. When an ALJ makes a decision regarding the merits of the case, or the dismissal of the appeal, that decision is called an initial decision. 5. A complete and exact record of the proceedings shall be made by electronic or other means. When requested by the party, the OAC shall cause the proceedings to be transcribed. 6. When the ALJ dismisses an appeal for reasons other than failure to appear, the decision of the ALJ shall be an initial decision, which shall not be implemented until the Office of Appeals completes its review and enters a final decision. 7. The ALJ shall not enter a default against any party for failure to file a written answer in response to the notice of hearing, but shall base the initial decision upon the evidence introduced at the hearing. However, an appellant may be granted a postponement of the hearing if the county department has failed to provide the hearing packet required by section 3.609.711, and the appellant has therefore been unable to prepare for the hearing. 8. When OAC has notified the appellant of the time, date, and place of the OAC hearing and the appellant fails to appear at the hearing, without giving notice to the ALJ of acceptable good cause for his or her inability to appear at the hearing, then the appeal shall be considered abandoned. The ALJ shall enter an order of dismissal and the OAC shall serve it upon the parties. The dismissal order shall not be implemented pending review by the Office of Appeals and entry of an agency decision. However, the appellant shall have ten (10) calendar days from the date the order of dismissal was mailed to draft and send a letter to the ALJ explaining the reason for his or her failure to appear. If the ALJ then finds that there was good cause for the appellant not appearing, the ALJ shall vacate the order dismissing the appeal and reschedule the hearing date. If the appellant does not submit a letter seeking to show good cause within the ten (10) day period, the order of dismissal shall be filed with the Office of Appeals of the state department. The Office of Appeals shall review the dismissal of the appeal and give the appellant time to file exceptions before issuing a final agency decision in accordance with the procedures in section 3.609.72. After the final agency decision is served on the parties, the county department shall carry out the necessary actions within ten (10) calendar days of the final agency decision becoming effective. The actions may be: to provide assistance or services in the correct amount, to terminate assistance or services, to recover assistance incorrectly paid, and/or other appropriate actions in accordance with the rules. Pursuant to section 24-4- 106(5), C.R.S., the effective date of the final agency decision may be postponed if the appellant makes a request for postponement due to irreparable injury to the state department or the court reviewing the final agency action on judicial review.