160 State Hearing Procedures

PURPOSE: This rule outlines the procedure for appeals from county decisions and subse- quent action to be taken on those appeals. (1) This rule outlines the procedure for par- ticipant appeals resulting from the operation of the programs administered by the Missouri Department of Social Services pursuant to section 208.080, RSMo. For anything in this rule that conflicts with appeals of decisions regarding Temporary Assistance screening or testing for illegal controlled substances, the regulation at 13 CSR 40-2.440 shall control. For anything in this rule that conflicts with a federal or state law or regulation relevant to the program for which the appeal is made, the relevant federal or state law or regulation controls. (2) Definitions. (A) “Authorized Representative” means an individual or organization who a participant has legally authorized to act on behalf of the participant in the appeal process as provided for under 13 CSR 40-2.015. Participants shall designate an authorized representative in ways that are approved by the division and are authorized by state and federal law. If the participant is unable to reduce such autho- rization to writing or to a form approved by the division, the hearing officer, or other division employee may assist the participant in doing so as allowed by law. (B) “Division” means the relevant division of the Department of Social Services to whom a participant is requesting an appeal. Pursuant to section 208.080, RSMo, this (10/31/20) JOHN R. ASHCROFT 13 CSR 40-2—DEPARTMENT OF SOCIAL SERVICES Division 40—Family Support Division shall be either the Family Support Division, Children’s Division, or MO HealthNet Divi- sion. (C) “Electronic access account” means the use of available online application processes or other available electronic systems by par- ticipants to submit an application or other- wise conduct business with the division. (D) “Good cause” means a mistake or con- duct beyond the control of the participant that is not intentionally or recklessly designed to impede the hearing process. For purposes of this regulation, failure to advise the division of a current mailing address shall not consti- tute good cause. (E) “Hearing” means a legal proceeding to provide documents and testimony for the division. The proceeding shall be conducted for the purpose of presenting evidence rele- vant to the participant’s appeal. The Hearing Officer may appear in person, by telephone, or other electronic means. (F) “Hearing Notice” means a document, sent by the Division of Legal Services of the Department of Social Services, advising the participant of the time, date, and place of their hearing. (G) “Participant” means an individual or vendor who has applied for, is receiving, or has been denied benefits or services provided by the Department of Social Services or by other applicable programs administered by the Department of Social Services. (3) In addition to appeal rights conveyed by section 208.080, RSMo, if an institutional- ized spouse, a community spouse, or a repre- sentative of either has requested an assess- ment of countable resources for the month in which institutionalization begins, in accor- dance with 42 USC 1396r-5, upon the deter- mination of the spousal share, the institution- alized spouse and the community spouse shall be notified in writing by the division of their rights to appeal to the director of the division. This notice shall inform the institutionalized spouse and community spouse that appeal rights are effective upon application for applicable MO HealthNet benefits for the institutionalized spouse. Hearings regarding assessment issues shall be held within thirty (30) days of the date of the request for the hearing. (4) Upon the determination of the community spouse monthly income allowance described in 42 USC 1396r-5, the division shall notify, in writing, the institutionalized spouse and the community spouse, of their rights to appeal to the director of the division. (5) A participant may appeal any division decision that delays, denies, or adversely affects the participant’s benefits or services to the division director, pursuant to section 208.080, RSMo. This may include a failure of the division to act, as provided by law. (A) A participant may request an appeal in person, by telephone, by mail, or through other commonly available electronic means that are used by the division, including email and facsimile transmission. (B) Proper blank forms for requesting an appeal shall be available at local division offices and online through the division web- site. (C) A request for an appeal shall include, at a minimum: 1. The name and Departmental Client Number (DCN), Social Security number, or date of birth of the participant for which the hearing has been requested, or the name and Departmental Vendor Number (DVN) of the vendor for which the hearing has been requested; 2. The name of the person requesting the hearing, if requested by someone other than the participant; 3. The current address and phone num- ber of the participant, and the current address and phone number of the person requesting the hearing if requested by someone other than the participant; and 4. A brief description of the reason the appeal is being requested. (D) An electronic signature shall serve as a valid signature for the purposes of requesting an appeal under this regulation. (6) A participant may request an expedited hearing if the participant’s life, health, or ability to attain, maintain, or regain maxi- mum function would be jeopardized by the time ordinarily permitted for a standard hear- ing, or as otherwise required by law. (A) A health care provider may request an expedited hearing on behalf of the participant and in regards to the participant’s eligibility for benefits and services governed by section 208.080, RSMo, or alternatively, may submit documentation supporting the individual’s request for an expedited hearing. (B) A request for an expedited hearing may be made in the same manner as any other request for a hearing, as set forth in para- graph (5)(C)2., above. (C) If the hearing officer denies the request for an expedited hearing, the hearing officer shall notify the participant through electronic means or orally, and if orally, with written notice sent within two (2) calendar days of the denial. (D) If the hearing officer denies the request for an expedited hearing, the denied request shall still serve as a valid request for an appeal under this regulation. (7) The department shall send notice to the participant electronically at the participant’s last known electronic mail address, or by posting it to the participant’s electronic access account, at least ten (10) days before the date of the hearing, specifying the time, date, and location of the hearing. If the department determines that the participant has no electronic mail address on record and does not have an electronic access account, or has opted out of receiving electronic commu- nications, the department shall send the notice by regular United States mail to the participant’s last known mailing address. (A) The burden is on the participant to keep the division advised of his or her current mailing address and other pertinent contact information. (B) Service of notice to the participant’s last known electronic or mailing address of record, pursuant to this section, shall be deemed proper service. (C) If the department receives information prior to the scheduled hearing that the partic- ipant did not receive the notice, the depart- ment shall reset the scheduled hearing to a new hearing date and issue a new hearing notice to the participant’s updated contact location. If the participant’s updated contact location, or the contact location of his/her authorized representative or attorney, cannot be determined, the division shall take the appropriate action regarding the participant’s benefits or services as provided for by law for situations in which the division is unable to locate a participant. (D) The department may use a shorter notice period if it is not prejudicial to the par- ties. (E) A copy of the notice also will be sent to any attorney, legal guardian, and/or autho- rized representative who has notified the divi- sion that they are representing the participant. (8) Procedure with reference to the hearings shall be informal with respect to the conduct of the hearings. The Missouri Administrative Procedure Act, as set forth in section 536.070, RSMo, shall apply to hearings pur- suant to this regulation unless in conflict with another statute or federal regulation, or as otherwise set forth herein. (A) Stipulations may be entered into prior to final disposition to— 1. Withdraw the application for a hear- ing; 2. Agree to a statement of facts; or 3. Agree to any other pertinent matter or order. (B) An attorney shall not act as an advocate at a hearing in which the attorney is likely to be a necessary witness. (C) Briefs setting forth written argument on the law and the facts may be filed in any case within a specified time designated by the Chapter 2—Income Maintenance 13 CSR 40-2 hearing officer. (D) In order to protect the integrity and fairness of the appeals process, the hearing officer requires all parties and persons acting in a representational capacity to comply with the following rules of conduct: 1. All individuals shall appear for the hearing and be ready to proceed no later than the starting time listed on the notice. A hear- ing officer may find a participant in default and dismiss the appeal if the participant or the participant’s representative does not appear within ten (10) minutes after the start- ing time. However, the hearing officer shall retain the authority to commence the hearing at a time appropriate to the circumstances; 2. All individuals shall comply with all directions given by a hearing officer dur- ing a hearing. If any individual fails to follow these directions, the hearing officer may exclude the individual from the hearing, or may adjourn the hearing. (9) The department’s Division of Legal Ser- vices (DLS) has established hearing officer positions in order to comply with all perti- nent federal and state law and regulations. (A) Hearing officers shall be licensed to practice law in the State of Missouri at all times relevant herein. (B) The hearing officers shall have author- ity to conduct state-level hearings of a pre- termination or appeal nature. They shall serve as designees of the division director, as required by federal or state law. (C) All decisions issued after state-level hearings conducted by the hearing officers shall be in the name of the division director or the director’s designee, as required by fed- eral or state law. (D) The hearing officers’ authority to con- duct hearings shall be statewide. (E) The authority of the hearing officers to conduct hearings arises under section 208.080, RSMo, and shall apply to all pro- grams administered by the director of the department as set forth in section 208.080, RSMo. (10) Any party shall be entitled to conduct depositions pursuant to section 536.073 RSMo, as amended, and the Missouri Rules of Civil Procedure. The costs of the deposi- tions shall be borne by the party conducting the deposition unless otherwise agreed to by the parties or ordered by a court of competent jurisdiction. (A) Pursuant to section 536.073, RSMo, no discovery shall be allowed for hearings conducted pursuant to this rule unless it is expressly identified herein. (11) Subpoenas to compel the attendance of witnesses and subpoenas duces tecum to compel the production of records may be issued by the hearing officer upon a statement of necessity filed by the party requesting the issuance of the subpoena pursuant to section 536.077, RSMo. (A) The witness shall be entitled to the same fees and, if compelled to travel more than forty (40) miles from his or her place of residence, shall be entitled to the same tender of fees for travel and attendance, and at the same time, as is now or may hereafter be pro- vided for witnesses in civil actions in the cir- cuit court, such fees to be paid by the party requesting the subpoena, except where the payment of such fees is otherwise provided for by law. (B) Under no circumstances shall the department grant witness fees to parties to the case or their relatives. (12) The hearing officer may, as allowed by state and federal law, keep the record of the administrative hearing open to a fixed day so as to order, and receive the results of, a phys- ical or mental health examination, to allow the parties to submit additional evidence, or for other good cause. (A) In cases in which the hearings unit keeps the record open to a fixed day in order to allow the parties to submit additional evi- dence, if the additional evidence is not received by the department by the fixed day and no requests have been made to extend the record (in which case the hearing officer may extend the record further), the hearing officer shall close the record and the director will issue a decision based on the record. (B) A request for a continuance of the hearing date must be communicated to the hearing officer and any other parties to the hearing, if possible, at least five (5) days pri- or to the date of the scheduled hearing. Con- tinuances will be granted only when the hear- ing officer determines from the request that extraordinary circumstances exist. (13) For any time limit imposed by state or federal law under which the division must take final administrative action, starting with the date of the request for a hearing and end- ing on the date of the division’s action, and as allowed by federal and state law, the time limit is tolled for the length of any delay in the hearing process caused either by one (1) of the reasons identified in section (12) of this rule, the claimant’s actions, or by the actions of, or at the request of, the claimant’s autho- rized representative, guardian, conservator, or attorney. (A) If the record at an administrative hear- ing is held open at the request of a claimant under section (12) of this rule, the deadline for administrative action is extended by the number of calendar days between the date of the request for a hearing and the fixed day identified in section (12). (B) Example: The division receives a request for a hearing regarding a person’s eli- gibility for MO HealthNet on the basis of dis- ability on May 1, 2020. Under federal law, the division has ninety (90) days to take a final action on the outcome of the hearing. The division must therefore take final admin- istrative action on or before July 30, 2020. The hearings unit sets a hearing date for May 15, 2020 (fourteen (14) days into the ninety- (90-) day timeline). The claimant then requests a continuance of the hearing date, and the hearing is rescheduled for May 31, 2020. The ninety- (90-) day count stops on May 15, 2020 at fourteen (14) days. It resumes on May 31, 2020. This results in an extension of the deadline for administrative action by sixteen (16) days to cover the con- tinuance period of May 15 through May 31, 2020. The new deadline for administrative action becomes August 15, 2020. (14) Any party may represent themselves, be represented by an authorized representative, by a licensed Missouri attorney, by a nonres- ident attorney appearing in compliance with Supreme Court Rule 9, or by an eligible law student complying with Missouri Supreme Court Rule 13. (15) All persons who will be acting in a rep- resentative capacity on behalf of a party before the hearing officer shall file notice of their intent to represent the party as soon as possible after being retained or chosen. Non- attorneys shall file proof that they are autho- rized representatives of the participant pur- suant to 13 CSR 40-2.015. Attorneys shall file an entry of appearance. (16) The Hearings Unit shall dismiss an appeal under the following circumstances: (A) The appeal was not timely requested; (B) The division has not taken an action affording (or has not been inactive to such an extent as to afford) the participant a right to appeal; or (C) The participant, having been notified of the time, date, and place of the hearing, fails to appear at the hearing without good cause. (17) If the participant dies prior to or at any time during the appeal, the participant’s attorney’s or authorized representative’s authority shall terminate. (A) Upon being advised of the death of the participant, the hearing officer shall continue the hearing. (B) Following the participant’s death, only the duly authorized personal representative of or legal counsel for the participant’s estate (10/31/20) JOHN R. ASHCROFT 13 CSR 40-2—DEPARTMENT OF SOCIAL SERVICES Division 40—Family Support Division shall be allowed to represent the participant at the hearing. (C) If the duly authorized personal repre- sentative of the participant’s estate does not enter an appearance with the hearing officer within thirty (30) days after the hearing date, the hearing officer will dismiss the appeal. (D) This section shall not terminate an authorized representative’s authority to assist with an application for MO HealthNet bene- fits prior to the participant’s death, as allowed under 13 CSR 20-2.015(16). (18) Within a reasonable time after the con- clusion of a hearing, the division director or the director’s designee, as required by federal and state law, will render a decision in com- pliance with section 208.080.7, RSMo. (A) A copy of the decision will be sent to the participant and to the participant’s legal guardian, attorney, and/or authorized repre- sentative by regular United States mail, or electronically if the participant so chooses and the department has the capability to send an electronic notice. (B) A copy will also be sent to the divi- sion. AUTHORITY: sections 207.022 and 660.017, RSMo 2016.* Original section (1) filed sepa- rately Sept. 26, 1951, effective Oct. 6, 1951. Original section (4) filed separately Feb. 20, 1947, effective March 2, 1947. Original sub- section (5)(G) filed separately Feb 20, 1947, effective March 2, 1947. Original section (6) filed separately April 1, 1975, effective April 10, 1975. This version filed March 24, 1976. Amended: Filed April 14, 1980, effective Aug. 11, 1980. Emergency amendment filed Sept. 19, 1989, effective Oct. 1, 1989, expired Jan. 28, 1990. Amended: Filed Nov. 2, 1989, effective Jan. 26, 1990. Amended: Filed Jan. 10, 1990, effective April 12, 1990. Amended: Filed April 29, 2020, effective Nov. 30, 2020. *Original authority: 207.020, RSMo 1945, amended 1961, 1965, 1977, 1981, 1982, 1986, 1993, 2014 and 660.017, RSMo 1993, amended 1995. Connors v. Missouri Division of Family Ser- vices, 576 SW2d 578 (Mo. App. 1979). Physician member of medical review team which denied claimant’s application was not present for cross-examination at the hearing. Claimant’s failure to subpoena physician under 13 CSR 40-2.160(3)(C) precludes her from complaining on appeal of a deprivation of her right to cross-examine the physician.