APPEAL & FAIR HEARING

Transcription

1 414.1 GENERAL POLICY DEFINITIONS & ACRONYMS GOALS & OBJECTIVES GENERAL NOTIFICATION REQUIREMENTS APPEALABLE ACTIONS SUBSIDY DISRUPTION SUBSIDY CONTINUATION DURING APPEAL Processing Reported Changes during Appeal Processing a Redetermination during Appeal AUTHORIZED REPRESENTATIVES HEARING PROCEDURES P/C Request Aid to a P/C Filing an Appeal Method of Appeal Processing a Request Entering Appeal Details in PELICAN CCW Updating Appeal Details in PELICAN CCW Viewing the History of Appeal Details in PELICAN CCW Communication with the Hearing Officer Establishing Control Interim Assistance Scheduling a Hearing Group Hearings Hearing Withdrawn Hearing Abandoned Conducting the Hearing TESTIFYING HEARING DECISIONS Basis for Decision Notice of Decision RECONSIDERATION JURAS PRINCIPLE WORKING WITH THE CAO OVERRIDINGN ELIGIBILITY REOPENING A CLOSED CASE TO CONTINUE CARE P/C RIGHTS & RESPONSIBILITIES CCIS RIGHTS & RESPONSIBILITIES Page 1 of 85

2 UPDATED INFORMATION & ADDITIONAL RESOURCES Announcements Updates Communiqués Additional Resources TRAINING GUIDE Goals Objectives Section Checkpoint Questions Questions General Policy & Regulation Questions General Notification Requirements Questions Appealable Actions Questions Subsidy Disruption Questions Subsidy Continuation during Appeal Questions Processing Reported Changes Questions Processing a Redetermination Questions Authorized Representatives Questions Hearing Procedures Questions P/C Request Questions Aid to a P/C Filing an Appeal Questions Method of Appeal Questions Processing a Request Questions Communication with the Hearing Officer Questions Interim Assistance Questions Hearing Withdrawn Questions Conducting the Hearing Questions Testifying Questions Hearing Decisions Questions Reconsideration Questions Juras Principle Questions Working with the CAO Page 2 of 85

3 Section Checkpoint Answers Answers General Policy & Regulation Answers General Notification Requirements Answers Appealable Actions Answers Subsidy Disruption Answers Subsidy Continuation during Appeal Answers Processing Reported Changes Answers Processing a Redetermination Answers Authorized Representatives Answers Hearing Procedures Answers P/C Request Answers Aid to a P/C Filing an Appeal Answers Method of Appeal Answers Processing a Request Answers Communication with the Hearing Officer Answers Interim Assistance Answers Hearing Withdrawn Answers Conducting the Hearing Answers Testifying Answers Hearing Decisions Answers Reconsideration Answers Juras Principle Answers Working with the CAO Page 3 of 85

4 414.1 GENERAL POLICY The information in this chapter provides Child Care Information Services (CCIS) agencies with policy and procedure related to managing and implementing all aspects of the appeal and fair hearing process. The chapter contains instructions on filing an appeal along with the appropriate supporting information; identifying prehearing activities including conducting a prehearing conference, if appropriate; preparation for the hearing; testifying and proper conduct at the hearing; and implementation of post hearing activities. The Bureau of Hearings and Appeals (BHA) is a bureau within the Office of Hearings and Appeals (OHA), which contracts with an outside agency to conduct administrative appeal hearings for the Department of Public Welfare s (Department s) Subsidized Child Care program. Appeal hearings are held to provide due process, a fundamental legal right every citizen has under the 14 th Amendment to the United States Constitution, which states in part /nor should any state deprive any person of life, liberty, or property without due process of law. In 1970, the United States Supreme Court ruled that a failure on the part of government to pay a person a charitable installment (such as a welfare payment or child care subsidy) deprives the person of his personal property and therefore affords him the due process protection under the 14 th Amendment. 55 Pa. Code, Chapter 3041 (relating to subsidized child care eligibility) contains certain instructions for CCIS agencies with regard to processing appeals for the subsidized child care program. 55 Pa. Code, Chapter 275 (relating to appeal and fair hearing and administrative disqualification hearings) sets forth full hearing and appeal procedures for welfare applicants and recipients. The CCIS must abide by both sets of regulations when conducting activities related to hearings and appeals. Chapter 275 was promulgated to set forth the responsibilities of the County Assistance Office (CAO) in the appeal process and refers to the CAO only. In addition, the p/c is referred to as client throughout the regulation since that is the wording used by the CAO. There is no reference to the CCIS, although the Public Welfare Code mandates that the regulations apply to all public welfare benefits, including subsidized child care. In an effort to simplify the language of the regulation and its impact on the CCIS agencies, the regulation is stated in bold, without quotes, and the responsible agency (i.e., the CCIS in this case) and the impacted party (i.e., the p/c in this case) is included within brackets. If the regulation is quoted, verbatim, it will continue to be displayed in bold, within quotes, and there will be no brackets within the language. As set forth in 275.1(a)(1) (relating to policy), The freedom of the [p/c] to request a hearing is a fundamental right and is not to be limited or interfered with in any way. As set forth in 275.1(a)(4)(ii) (relating to policy), An appeal will be dismissed by the [Bureau of Hearings and Appeals (BHA)] and a person will not have the right to appeal a decision by the Department to initiate prosecution proceedings under (relating to procedures). Page 4 of 85

5 255.4 sets forth the procedures associated with seeking restitution when an overpayment has been established (e)(2)(ii) (relating to collection activities) specifies that a p/c does not have the right to appeal collection of an established overpayment. However, the p/c does have the right to appeal the amount of the overpayment. As set forth in 275.1(b), the objectives of appeals and fair hearing will be as follows: (1) To afford each [p/c] an opportunity for an impartial, objective review of decisions, actions and delays, or in actions made by the [CCIS] and the Department. (2) To settle the issue or issues raised by the [p/c] in requesting a hearing and to produce a clear and definitive decision setting forth the findings of the Department. (3) To contribute to uniformity in the application of Departmental regulations. (4) To reveal aspects of Departmental regulations that are deficient, inequitable or constitute a misconstruction of law. See Manual Section Questions General Policy DEFINITIONS & ACRONYMS See Manual Chapter 101 Definitions and Acronyms for a complete, alphabetical listing of definitions and a table of acronyms GOALS & OBJECTIVES See Manual Sections Goals and Objectives GENERAL NOTIFICATION REQUIREMENTS In 1976, the United States Supreme Court affirmed that a welfare recipient must be given a timely and adequate notice and an opportunity to present his own arguments and evidence and to confront adverse witnesses if he disagrees with the proposed action of the social service agency. As set forth in (a) (relating to general notification requirements), The eligibility agency (refers to the CCIS) shall notify the p/c in writing no later than 10 calendar days prior to taking an action that affects the family s eligibility status for subsidized child care or a change in the amount of the family s subsidized child care benefit. Page 5 of 85

6 Pennsylvania s Enterprise to Link Information for Children Across Networks (PELICAN) Child Care Works (CCW) generates notices which allow for a 13-day adverse action notice period (AA period) prior to taking action that negatively impacts a family s subsidized child care benefits. This allows for the required 10-day period of notification and an additional three days for delivery through the United States Post Office. As specified in (b), Following the preparation of a written notice, the eligibility agent shall: (1) Mail or hand-deliver within 1 working day of preparation, the original and one copy of the notice to the p/c. NOTE: The p/c receives only the original copy of the notice. The original copy of the notice is saved and archived through PELICAN CCW and the CCIS can create duplicate copies upon request. (2) Notify the family s child care provider as soon as the family is determined eligible or ineligible for subsidized child care. NOTE: Child care providers receive notification as soon as a family becomes eligible, as long as there is available funding to enroll the child. If funds are not available, the provider will be notified as soon as funding becomes available. Providers receive the first page of the Notice of Adverse Action (AA) when families become ineligible for subsidized child care. (3) Retain a copy of the notice in the family file as specified in (relating to family file). NOTE: PELICAN CCW is the official file for subsidized child care data and information. CCIS agencies may NOT print copies of notices, solely for the purposes of filing the notice in the family file, as they are available in PELICAN CCW and can be accessed and printed, if necessary, at any time. As stated in (relating to notice of right to appeal) The following information shall be included in the notice of the right to appeal: (1) The statement regarding the p/c s right to appeal. (2) The time frame associated with filing a timely appeal as specified in (d) and (b) (relating to p/c rights and responsibilities; and hearing procedures). (3) The time frame associated with subsidy continuation as specified in (relating to subsidy continuation during the appeal process). (4) The consequence of filing an appeal untimely. (5) The responsibility to repay if subsidy continues and the p/c does not win the appeal. (6) Instructions regarding how to appeal. Page 6 of 85

7 PELICAN CCW generates notices when the CCIS takes an action that is appealable. All notices contain the language regarding the right of the p/c to appeal and instructions on how to appeal as required by regulation. Appeal notices also provide the name, address and telephone number of the local legal services office where the p/c may obtain free legal representation. See Manual Section Questions General Notification Requirements APPEALABLE ACTIONS As specified in (relating to appealable actions), A p/c has the right to appeal a Departmental or CCIS action or failure to act, including the following: (1) Denial of subsidy. (2) Termination of subsidy. (3) Computation of the co-payment. (4) Denial of a request for waiver of a requirement of this chapter based on domestic violence as specified in (relating to general domestic violence waiver requirements). (5) Failure of the CCIS to act upon a request for subsidy within the time limits specified in this chapter. (6) Subsidy suspension, as specified in (relating to subsidy suspension). (7) Subsidy disruption, as specified in (relating to subsidy disruption). See Manual Section Questions Appealable Actions SUBSIDY DISRUPTION As specified in (relating to discontinuation of subsidy), Subsidy is not continued pending a hearing decision if the p/c appeals the disruption of subsidy when the CCIS lacks funding to continue subsidy to a child as specified in (relating to disruption). See Manual Section Questions Subsidy Disruption Page 7 of 85

8 414.7 SUBSIDY CONTINUATION DURING APPEAL As specified in (a) (relating to subsidy continuation during the appeal process), Subsidy continues at the prior level until the appeal is heard and a final decision is made by the Department, if the p/c does both of the following: (1) Files an appeal that is postmarked or received no later than 10 calendar days after the date of the written notice. (2) Appeals for a reason other than disruption of subsidy or lack of funding. The CCIS MUST process an appeal request submitted by a p/c even if the p/c is appealing the disruption of subsidy, is challenging the validity of a Departmental regulation or submits the appeal after the appeal period expires. The hearing officer will dismiss the appeal if the reason for the appeal is not an appealable action as described in Manual Section Appealable Actions. The intent of continuing subsidy at the prior level during the appeal process is to meet the child care needs of the family while the issue in question is pending a hearing decision. When a p/c submits an appeal related to a scheduling issue (i.e., job loss or decrease in work hours) and requests that subsidy continue pending the appeal, the CCIS must continue to provide subsidized child care during the hours/days care was received prior to the p/c submitting the appeal. The CCIS may not adjust the child s enrollment schedule unless the p/c agrees to a decrease in the number of hours/days. EXAMPLES 1. NOT!djusting the Child s Enrollment Schedule A p/c is employed 9 a.m. 5 p.m., half-hour travel time before and after. His child is a three-year-old that receives full-time care. The p/c submitted verification to complete his redetermination and that verification indicated a decrease in work hours from 8 hours/day, 5 days/week to 8 hours/day, 3 days/week. The CCIS adjusted the child s enrollment schedule based on the verification submitted and sent a Confirmation Notice. The p/c appealed the schedule adjustment, indicating the decrease in work hours was temporary due to mandatory unpaid training days. The p/c indicates he wants fulltime care 5 days/week pending the hearing decision. The CCIS MUST return the child s enrollment schedule to full-time care 5 days/week. 2.!djusting the Child s Enrollment Schedule A p/c is employed 9 a.m. 5 p.m., half-hour travel time before and after. His child is school age and receives care before and after school. The CCIS received information that the p/c quit his job. The p/c appealed the AA regarding voluntary job loss indicating the job loss was involuntary. The p/c acknowledges there is no need for care after school but he would need the before-school care to continue since he spends the early morning hours submitting applications for new jobs. The CCIS may adjust the child s enrollment schedules to accommodate the p/c s needs. Page 8 of 85

9 When a p/c submits an appeal that is unrelated to scheduling issues (i.e., delinquent co-pay, absence, child over age or income calculation), the CCIS may change the child s enrollment schedule, as appropriate. If a p/c is requesting a decrease in the number of hours/days of child care, the CCIS may adjust the child s enrollment schedule based upon the p/c s request and no verification is needed. If the p/c is requesting an increase in the number of hours/days, the p/c must submit verification indicating the increased need. EXAMPLE: A p/c submitted income verification to complete his redetermination and three of the four paystubs show bonuses. In addition, the paystubs indicate increased work hours. The p/c appealed the AA regarding the inclusion of the bonuses in the income calculation. The CCIS must adjust the child s schedule to reflect the increase in the p/c s work hours. Contact your Subsidy Coordinator if you have questions regarding adjusting a child s schedule during appeal. See Manual Section Questions Subsidy Continuation during Appeal Processing Reported Changes during Appeal The CCIS should conduct business as usual regarding processing reported changes, unless there is an outstanding appeal regarding that reported change. The CCIS may process requests to increase or decrease the number of hours/days care is received during the appeal process, unless the change in schedule is the reason for the appeal. The CCIS may only process an increase in the number of hours/days care is received when the p/c submits acceptable verification indicating the need for increased care. Receipt of subsidy at the prior level has NO impact on the copayment assessment process. If, at any time during the appeal process, the p/c submits documentation/verification that results in a change in the co-payment, the CCIS must increase or decrease the co-payment as appropriate, unless the change in co-payment is the reason for the appeal. EXAMPLES: 1. Processing a Change UNRELATED to the Appeal Family consists of mother and her three children ages 6, 8 and 13. The CCIS issues an AA regarding the p/c s failure to verify a 13-year-old child s disability and need for continued care. The p/c appeals the AA and requests that subsidy continue pending the appeal. The CCIS must override the 13 year-old s eligibility to continue care for all children. Later, during the appeal process, the p/c submits verification indicating a decrease in the number of hours from 40 hours/week to 25 hours/week with a decrease in employment income, which would result in a decreased co-payment. The CCIS must process the reported change, adjust the children s schedules moving forward, generate a Confirmation Notice related to the co-payment decrease and decrease the co-payment effective the next Monday. Page 9 of 85

10 2. NOT Processing a Change RELATED to the Appeal P/C is working for Whitmore Construction, Monday through Friday, 6 a.m. to 5 p.m. The children receive subsidy, Monday through Friday, from 5:30 a.m. to 5:30 p.m. The CCIS receives information during a redetermination that indicates the p/c is no longer working for Whitmore Construction and has been misrepresenting himself as employed. On 9/28, the CCIS issues an AA regarding p/c s failure to meet the workhour requirement. The p/c appeals the AA and requests that subsidy continue pending the appeal. The p/c insists he is employed and has actually been working from 6 a.m. to 8 p.m. because the company started a new project on 10/3 and he is appealing because the employer is his brother-in-law, who is angry with him and this is the reason his employer stated he is no longer working for Whitmore Construction. The p/c indicates he currently needs care from 5:30 a.m. to 8:30 p.m. The CCIS continues care at the original schedule pending appeal. The CCIS may not process the request for an increase in care because the reported change is related to the appeal. The CCIS must consider the circumstances surrounding the appeal when deciding whether it may increase the number of hours/days during which child care is received. If the CCIS has evidence that the p/c was fraudulent or altered documentation/verification related to the hours/days of work, education or training, or income, the CCIS is NOT required to process a request for a change that involves the questionable verification. EXAMPLE: The p/c submitted to the CCIS what appears to be an altered Employment Verification (EV) form and paystubs. The p/c requests an increase in the number of hours/days during which care is received based upon the increase in work hours as indicated on the EV and paystubs. The CCIS will not increase the number of hours/days in the child(ren) s enrollment schedule. If the CCIS processes a reduction in the number of hours/days subsidy is received, during the appeal process, then later the p/c requests the schedule (s)be reinstated to the original schedule(s), the CCIS MUST reinstate the schedule(s) to the original schedule(s) in place at the time the appeal was filed. As specified in (b), If subsidy continues as specified in section (a), the p/c shall continue to make timely payment of the co-payment that was in effect prior to issuance of the notice until a final decision is made by the Department, as specified in (relating to general co-payment requirements). Page 10 of 85

11 The CCIS may NOT process a reported change, including an increase or decrease in co-pay, which is related to the appeal until the Department makes a final decision. EXAMPLE: P/C is working for Wal-Mart 40 hours/week and the co-payment is $15. The family s redetermination is due 1/4. The CCIS receives information during a redetermination that indicates the p/c received a bonus on each of the four weekly paystubs submitted to complete the redetermination. On 1/4, the CCIS issues a Confirmation Notice increasing the co-payment from $15 to $25. The p/c appeals the increased co-payment and requests that subsidy continue pending the appeal. The CCIS continues care at the original co-payment that was in effect prior to the appeal. On 3/12, while still in the appeal process, the p/c submits new verification indicating reduced hours from 40 hours/week to 20 hours/week beginning on 2/6, which results in the co-payment decreasing to $10. The new income verification continues to reflect a bonus. The CCIS continues care at the original co-payment that was in effect prior to the appeal. The CCIS may not process the request for a decrease in the co-payment because the reported change is related to the appeal. If the appeal decision is rendered in favor of the p/c, the CCIS will adjust the co-payment to $10 effective the first Monday following 2/6 and send the appropriate Confirmation Notice. As specified in (c), If subsidy continues during the appeal process and the hearing officer finds in favor of the CCIS or the Department, the p/c shall reimburse the Department for the amount of the subsidy or increase in subsidy paid for child care from the proposed effective date of the notice until the date subsidy is terminated or decreased, based on the final administrative action order. See Manual Section Questions Processing Reported Changes during Appeal Processing a Redetermination during Appeal The CCIS should conduct business as usual regarding processing a redetermination that is due during the appeal process. At the time the family s redetermination is due, the p/c must submit all documentation/verification necessary to complete the redetermination by the due date. If the p/c indicates a change on the Redetermination Summary and that change is related to the reason for the appeal, the CCIS must complete the redetermination in Full Redetermination mode in PELICAN CCW without considering the information related to the reason for the appeal. Page 11 of 85

12 EXAMPLES: 1. Processing a Change UNRELATED to the Appeal Family consists of mother and her three children ages 6, 8 and 13. The CCIS issues an AA regarding the p/c s failure to verify a 13-year-old child s disability and need for continued care. The p/c appeals the AA and requests that subsidy continue pending the appeal. The CCIS must override the 13-year-old s eligibility to continue care for all children. On 6/23, during the appeal process, the redetermination is due. The p/c submits verification indicating a decrease in the number of hours from 40 hours/week to 25 hours/week with a decrease in employment income, which would result in a decreased co-payment. The CCIS must put the case in Full Redetermination mode, enter the updated employment hours and income and assess/confirm eligibility to complete the redetermination process. The CCIS must then adjust the children s schedules and decrease the co-payment. 2. NOT Processing a Change RELATED to the Appeal The p/c is working for Wal-Mart 40 hours/week and the co-payment is $15. The family s redetermination is due 1/4. The CCIS receives information during a redetermination that indicates the p/c received a bonus on each of the four weekly paystubs submitted to complete the redetermination. On 1/4, the CCIS issues a Confirmation Notice increasing the co-payment from $15 to $25. The p/c appeals the increased co-payment and requests that subsidy continue pending the appeal. The CCIS continues care at the original co-payment that was in effect prior to the appeal. On 7/4, while still in the appeal process, the redetermination is due again. The p/c submits new verification indicating reduced hours from 40 hours/week to 20 hours/week beginning on 6/23, which would result in the co-payment decreasing to $10. The new income verification continues to reflect a bonus. The CCIS must put the case in Full Redetermination mode, but may not update the income because the reported change is related to the reason for the appeal. The CCIS continues care at the original co-payment that was in effect prior to the appeal, but adjusts the child(ren) s enrollment schedules from 40 hours/week to 20 hours/week moving forward. If the appeal decision is rendered in favor of the p/c, the CCIS will adjust the copayment to $10 effective the Monday following the date the redetermination was completed and send the appropriate Confirmation Notice. See Manual Section Questions Processing a Redetermination during Appeal Page 12 of 85

13 414.8 AUTHORIZED REPRESENTATIVES As specified in (c) (relating to family file), A p/c or an authorized representative has a right to examine the family file. As specified in 275.3(a)(3) (relating to requirements), the [p/c] and his representative, if any, have the right to examine prior to the hearing, as well as during the hearing, documents which the [CCIS] will introduce as evidence in the hearing as well as the contents of the case file as provided for in (relating to access by an individual to his case file) or appropriate confidentiality regulations for the service program. If the CCIS believes the file is protected by confidentiality, the CCIS may send the Administrative Law Judge a written summary that includes the reason for the appeal, the specific information the p/c or authorized representative is requesting and the reason for withholding the information. The CCIS must provide a copy of the summary to the p/c and the authorized representative. The Administrative Law Judge will make the final decision. As specified in (c) (relating to p/c rights and responsibilities), A p/c may authorize an adult to represent him at the hearing. As specified in 275.4(a)(1)(iv) (relating to aid to clients making appeals), The [CCIS] will provide whatever help the [p/c] needs in requesting a hearing. This may include advising the [p/c] that he may be represented by an attorney, relative, friend or other spokesman and explaining that he may contact his local bar association to locate the legal services available in the county. A p/c may select an authorized representative by contacting the CCIS directly or by entering the name of the individual in the appeal section of any notice generated by the CCIS using PELICAN CCW. Once the p/c selects an authorized representative, the p/c must sign a statement allowing the CCIS to share information with the authorized representative. The signed statement must list the name of the authorized representative and the types of information the CCIS may share. The p/c may also list any limitations to the types of information the CCIS may share in the statement. Once the p/c submits the statement indicating the name of an authorized representative and the types of information the CCIS may share, the CCIS must enter this information in a case comment in PELICAN CCW. The CCIS must mark the comment with High Importance so anyone working on the case has immediate access to the information. Page 13 of 85

14 In addition to creating an important case comment, the CCIS must enter the name of the authorized representative in one of the Best Time to Call fields on the Household Information Detail page. The fields allow for up to 40 characters. Entering the name of the authorized representative in one of these fields will easily allow anyone viewing the case to identify the p/c has selected an authorized representative. Once entered, the name of the authorized representative will display on the Household Information Details and on the Case Summary pages. This information will continue to display unless the p/c instructs the CCIS to remove authorization related to the authorized representative or advises the CCIS of a change in authorized representative. Page 14 of 85

15 Once the p/c has selected an authorized representative, the CCIS must ensure all contact with the p/c occurs through the authorized representative only. In other words, the CCIS must contact the p/c s authorized representative to relay information or questions to the p/c and should avoid direct contact with the p/c. The CCIS must include the authorized representative in any discussion regarding the possible resolution of or withdrawal of an appeal. The CCIS must provide the authorized representative with all information the CCIS intends to use as evidence at the hearing, names of CCIS staff and other witnesses that will attend the hearing and any exhibits without charge to the p/c or authorized representative as soon as practicable an no later than 5 calendar days prior to the hearing. The CCIS may not simply take the word of an authorized representative that the p/c made the selection. The CCIS must verify with the p/c the selection and ensure the p/c provides a signed statement allowing the release of information. The authorized representative may be able to offer resources or additional help to the CCIS. For example, the authorized representative may be able to obtain verification or other information needed to maintain eligibility for subsidized child care, if appropriate. The CCIS MUST grant an authorized representative full access to all case records and information. There is no need for the authorized representative to obtain a subpoena to do so. See Manual Section Questions Authorized Representatives Page 15 of 85

16 414.9 HEARING PROCEDURES As specified in (b), An appeal postmarked or received after 30 calendar days from the date the written notice is postmarked or handdelivered to the p/c will be dismissed as untimely without a hearing, unless one of the provisions allowing for appeals after 30 calendar days applies as specified in 275.3(b)(2) and (3) (relating to time limitations on right to appeal). NOTE: Chapter 275 includes several exemptions to this rule, as stated below. Since this deadline may vary due to a p/c s circumstances, the CCIS should never reject an appeal based on timeliness. The CCIS should date-stamp all appeals and forward the appeal to BHA. The time to challenge the timeliness of an appeal is at the hearing. The Administrative Law Judge will make the decision regarding the timeliness of the appeal. As specified in 275.3(b)(2) and (3), a [p/c] must exercise his right of appeal with the following time limits: (2) Sixty days from the date of a decision or action by the [CCIS] when they did not send written notice because the notice was not required or 60 days from their failure to act. (3) When the [CCIS] fails to send written notice which was required of the action and of the right of appeal or because of administrative error, ongoing delay or failure to take corrective action that should have been taken, the time limit in paragraph (2) will not apply. For a period of 6 months from the date of the action or failure to act, the [p/c] shall have the right of appeal and shall exercise that right in writing. After 6 months from the date of the [CCIS] action or failure to act, a written appeal may be filed with the [CCIS] provided that the [p/c] signs an affidavit stating the following: (i) The [p/c] did not know of his right of appeal or believed the problem was being resolved administratively. (ii) The [p/c] actually believes the CCIS erred in its actions. (iii) The appeal is being made in good faith. Appeals which do not meet the time limitations and requirements set forth in paragraph (2) will be dismissed without a hearing. As specified in (c), The hearing may be conducted by a telephone conference call with the parties to the appeal, including the p/c, the authorized representative of the p/c, the CCIS, the Department and the hearing officer. The p/c has the right to request a face-to-face hearing instead of a telephone hearing. Face-to-face hearings will be held in locations specified by the Department, as specified in (d). As specified in (e), If a p/c does not withdraw an appeal, the CCIS or the Department, if appropriate, will take part in the scheduled hearing to justify the action to which the p/c objects. If the CCIS or the Department fails to appear at the hearing and the p/c appears, the p/c s appeal will be sustained, as specified in (f). Page 16 of 85

17 As specified in (g), If the p/c fails to appear for the hearing, regardless of whether the CCIS or the Department appears, the appeal is considered abandoned and the decision of the CCIS or the Department will be sustained. The Department will notify the CCIS and the p/c, in writing, when disposition of the appeal is made, as specified in (h). As specified in (i), The CCIS shall implement the final administrative action within the time limit ordered by the Department or on the first day child care is needed in the week following receipt of the final administrative action order. OCDEL Timeframe Clarification: The CCIS must continue to pay for subsidized child care for 20 calendar days allowing the p/c the opportunity to request reconsideration. The CCIS may not discontinue/end subsidized child care immediately upon notification that the decision was made in favor of the CCIS. See Manual Section Questions Hearing Procedures P/C Request As specified in (relating to p/c rights and responsibilities), (a) A p/c appealing an adverse action shall submit a written request to the CCIS in accordance with Chapter 275. The p/c shall specify the reason for the appeal, the current address and a telephone number, if possible, when the p/c can be reached during the day. The p/c may request a fair hearing by: 1. Completing and signing the appeal section of the written notice and sending or hand delivering the request to the CCIS. 2. Orally notifying the CCIS and following-up by submitting a written request to the CCIS by mail or hand-delivery within 7 calendar days. 3. Faxing the request to the CCIS and following-up by submitting a written request to the CCIS by mail or hand-delivery within 7 calendar days. When requesting a fair hearing, the p/c must include the following information: 1. The reason for the appeal. 2. Current address. 3. A telephone number where the p/c can be reached during the day. 4. The p/c s signature. Page 17 of 85

18 NOTE: If the p/c requests a copy of the written notice in its entirety, the CCIS must provide the p/c with a copy. The CCIS may provide a copy using the Duplicate functionality in the Correspondence subsystem in PELICAN CCW. For additional information regarding requesting and generating a Duplicate copy of a written notice, see Manual Chapter 500 Correspondence. (b) A p/c may orally appeal. The CCIS shall document the date of the oral appeal in the case file. The p/c shall confirm the oral appeal in writing to the CCIS no later than 7 calendar days following the date the p/c orally requested an appeal. NOTE: The p/c may also fax an appeal to the CCIS, but must confirm the faxed appeal in writing to the CCIS no later than 7 calendar days following the date the p/c faxed the appeal request to the CCIS. REMINDER: The CCIS may NOT fax an appeal to BHA. For additional information regarding processing a request, see Manual Section Processing a Request. (c) A p/c may authorize an adult to represent him at the hearing. (d) If the p/c wants subsidy to continue pending a hearing decision, subject to (relating to subsidy continuation during the appeal process), the p/c shall submit a written appeal no later than 10 calendar days following the date the written notice is postmarked or hand-delivered to the p/c by the CCIS. If the p/c wants subsidy to continue pending a hearing decision, the p/c must submit the written appeal no later than 10 calendar days following the date the written notice is postmarked or handdelivered to the p/c by the CCIS. If the p/c submits the appeal later than the 10 th calendar day, the CCIS will process the appeal, but will not continue subsidized child care pending the hearing decision. See Manual Section Questions P/C Request Page 18 of 85

19 Aid to a P/C Filing an Appeal As specified in 275.4(a)(1) (relating to aid to clients making appeals), the [CCIS] will provide whatever help the [p/c] needs in requesting a hearing. This may include the following: (i) Clearly explaining the basis for questioned decisions or actions. (ii) Explaining the rights and fair hearing proceedings of the [p/c]. (iii) Providing the necessary forms and explaining to the [p/c] how to file his appeal and, if necessary, how to fill out the forms. (iv) Advising the [p/c] that he may be represented by an attorney, relative, friend or other spokesman and explaining that he may contact his local bar association to locate the legal services available in the county. NOTE: Local legal services agencies are displayed, specific to the county, on all notices generated by PELICAN CCW. The CCIS must remain neutral and help a p/c with the appeal process. This includes explaining the reasons for the CCIS actions, providing information regarding the appeal and fair hearing process, assisting the p/c with completing the appeal paperwork and advising the p/c of the right to representation. The CCIS may NOT interfere with the p/c s right to appeal. The CCIS must advise the p/c of the requirement to repay child care funding if care continues and the p/c loses the appeal. However, the CCIS must never use the threat of an overpayment to discourage the p/c from filing an appeal, even when it appears to the CCIS that the p/c will lose the appeal. As specified in (a) (relating to eligibility agency responsibilities regarding appeal), If the p/c is unable to prepare a written appeal, the CCIS shall assist the p/c in preparing a written appeal. The p/c shall sign the appeal request. The CCIS shall document the date of the oral appeal in the case file, as specified in (b). The CCIS MUST enter and update the appeal details, for every appeal that is submitted by a p/c, in PELICAN CCW on the Appeal Detail page, as appropriate. In addition, the CCIS must set a tracking date alert in PELICAN CCW to ensure the p/c submits a follow-up written appeal within 7 calendar days. As specified in 275.4(a)(3)(ii), the [CCIS] shall offer the [p/c] the opportunity for an agency conference to resolve, if possible, the appeal. The [p/c] shall be advised that the agency conference is optional and that it shall in no way delay or replace the fair hearing process. An agency conference may result in resolution of the dispute. If this occurs, the hearing examiner must be notified in writing. If not, a fair hearing must still be held. Page 19 of 85

20 The Department strongly suggests that the CCIS schedule an agency conference, whenever possible, with the p/c in an attempt to resolve the appeal. The CCIS MUST document the details and outcome of the Pre-hearing conference in case comments within PELICAN CCW. The CCIS MUST file all documentation submitted by the p/ during the appeal process in the case file. The CCIS must advise the p/c of the requirement to repay the full amount of any subsidized child care received for which the family was not eligible. Under no circumstances should a CCIS try to dissuade a p/c from filing an appeal, even if the CCIS is confident that the p/c will not win and will have to repay the full amount of an overpayment. See Manual Section Questions Aid to a P/C Filing an Appeal Method of Appeal As specified in 275.4(a)(2) (relating to method of appeal), procedures relating to the method of appeal will be as follows: (i) A hearing request must be made to the agency which notified the [p/c] of its decision or action. When an appeal is taken, the appeal letter and proposed action must be forwarded to the [BHA]. (ii) A request for a hearing will usually be made in writing. Appeals must specify the action appealed from and must be signed by the [p/c]. (iii) (iv) (v) If an oral request for a hearing is made, the [CCIS] will either give the [p/c] the appropriate form to complete or record the request for a hearing with a statement of the action appealed from and the reasons given by the [p/c] on the proper form, and obtain the signature of the [p/c]. An oral appeal shall be reduced to a written appeal by the [p/c] within 7 calendar days following the date the [p/c] orally requested an appeal as specified in (b) (relating to p/c rights and responsibilities). Appeals to be scheduled for a hearing must be forwarded to the [BHA] within 3 working days from the date the appeal was received and datestamped. See Manual Section Questions Method of Appeal Page 20 of 85

21 Processing a Request As specified in (b), When the CCIS receives an appeal that is timely postmarked or delivered, the CCIS shall date-stamp the appeal, the envelope and the attachments with the date of receipt and retain copies of all original appeal information. REMINDER: The p/c has 30 calendar days to file an appeal timely. However, the CCIS must process an appeal regardless of whether it was submitted timely (i.e., within 30 calendar days) by the p/c. The BHA will determine whether it is appropriate to dismiss an appeal without a hearing based upon the p/c s failure to meet the established regulatory timeframes. As specified in (a) (relating to CCIS responsibilities regarding appeal), If the p/c is unable to prepare a written appeal, the CCIS shall assist the p/c in preparing a written appeal. The CCIS MUST enter and update the appeal details, for every appeal that is submitted by a p/c, in PELICAN CCW on the Appeal Detail page, as appropriate. If the appeal request was an oral request, the CCIS must set a tracking date alert in PELICAN CCW to ensure the p/c submits a follow-up written appeal within 7 calendar days. The [CCIS] must review the [p/c s] complaint to assure itself that the decision in question is in accordance with Departmental regulations and policies and determine what additional step, if any, should be taken to resolve the issue without a hearing, as specified in 275.4(a)(3)(i) (relating to agency staff responsibility upon receipt of a hearing request). If after the review, the CCIS determines the action was correct, the CCIS must forward the original appeal paperwork to BHA within 3 working days of the date the appeal is received and keep a copy for the file. If after the review, the CCIS determines the action was incorrect or additional information was received that alters the decision, the CCIS must take corrective action immediately, retroactive to the date on the notice. Corrective action may not interfere with, cancel or affect the p/c s right to proceed with a hearing. If the p/c is satisfied with the corrective action, the p/c must withdraw the request for a hearing in writing. The CCIS must forward the p/c s request to withdraw the appeal to BHA and notify the authorized representative, if applicable. Page 21 of 85

22 As specified in 275.4(a)(3)(v)(B), if the [CCIS] determines its decision is not in accordance with Departmental regulations or policies or if new or additional information is introduced which alters the decision, the [CCIS] will take corrective action. EXAMPLE: The p/c fails to submit verification necessary to complete a redetermination. The CCIS sends an AA terminating subsidized child care. The p/c submits an appeal within 10 calendar days. The p/c requests that care continue pending the hearing decision. The CCIS schedules an agency conference with the p/c. During the conference, the p/c submits the additional verification, which indicates the family remains eligible. The CCIS resolves the appeal, rescinds the AA and continues subsidized child care without interruption. The CCIS shall keep a copy and forward the original appeal along with the postmarked envelope to the Department s BHA no later than 3 working days following the date the appeal is received by the CCIS, as specified in (c). NOTE: The CCIS must include all supporting documentation related to the appeal when forwarding the original appeal to BHA. As specified in (d), The CCIS may not take the proposed adverse action until 10 calendar days following the date the written notice is postmarked or hand-delivered to the p/c and then only if the p/c has not filed an appeal. The CCIS may take the proposed adverse action before 10 calendar days following the date a provider closes for financial difficulties or loss of certification or registration or if funding is not available to continue subsidized care to the child, as specified in (e). The CCIS must submit all appeals, attachments and correspondence to: Federal Hearings and Appeals (FHA) 117 West Main Street Plymouth, PA Phone number: (570) or toll-free (800) Fax number: (570) See Manual Section Questions Processing a Request Page 22 of 85

23 Entering Appeal Details in PELICAN CCW Upon receipt of an appeal, the CCIS must enter the details related to the appeal on the Appeal Detail page in PELICAN CCW by completing the following steps: 1. Navigate to the Appeal Summary page within the case by: Selecting Appeals from the Select/ drop-down and clicking GO from within a case; OR Entering the Co/Record Number in the Appeals row on the Case Home page and click GO. 2. Click NEW on the Appeal Summary page. 3. Populate all the mandatory data fields and click SAVE. NOTES: The Appeal Date is the date the p/c submitted the appeal to the CCIS (i.e., the date the appeal was date-stamped). Page 23 of 85

24 When entering the Correspondence ID, the CCIS should NOT include the version number (i.e., the number following the dash). PELICAN CCW will display an error message if the full Corr ID is entered, including the dash Updating Appeal Details in PELICAN CCW The CCIS must update the appeal details by completing the following steps: 1. Navigate to the Appeal Summary page within the case by: Selecting Appeals from the Select/ drop-down and clicking GO from within a case; OR Entering the Co/Record Number in the Appeals row on the Case Home page and click GO. Page 24 of 85

25 2. Click UPDATE on the Appeal Summary page. 3. Enter additional details and/or update the data previously entered on the Appeal Detail page and click SAVE Viewing the History of Appeal Details in PELICAN CCW To view the appeal history, the CCIS must: 1. Navigate to the Appeal Summary page within the case by: Selecting Appeals from the Select/ drop-down and clicking GO from within a case; OR Entering the Co/Record Number in the Appeals row on the Case Home page and click GO. 2. Select an appeal record and click HISTORY to see an individual appeal record s history; OR click HISTORY without making a selection to see the history for all appeal records associated with the case. Page 25 of 85

26 Communication with the Hearing Officer As specified in 275.4(a)(3)(v)(F), procedures relating to communications with the hearing officer will be as follows: (I) Until the time of the fair hearing, only the written notice of the Department to the [p/c] or any other written statement used by the [p/c] to request a hearing will be available to the hearing officer. When there is no notice of the action of the [CCIS], the [CCIS], upon request of the hearing officer, will prepare a written explanation of its decision for the hearing officer with a copy sent to the [p/c] and his representative. NOTE: The written notice and all supporting documentation forwarded with the appeal are available to the hearing officer prior to the hearing date. (II) After the written notice or other statement is submitted to the [BHA], no further communication with the hearing officer prior to the hearing by the [p/c] or the [CCIS] regarding the appeal or the basis for the action of the [CCIS] will be permitted except as provided in 275.3(a)(3), or to request continuances, or to withdraw the action or the appeal, or to request a subpoena of evidence or witnesses. NOTE: 275.3(a)(3), refers to the need to examine prior to the hearing, as well as during the hearing, documents which the CCIS will introduce as evidence in the hearing as well as the contents of the case files. See Manual Section Questions Communication with the Hearing Officer Page 26 of 85

27 Establishing Control As specified in 275.4(c), central office (i.e., BHA) control will be in accordance with the following: (1) When a request for a hearing is received, the BHA will establish a control for 90 days from the date of appeal, whichever is applicable or when subsidy is continued pending a hearing decision because an appeal from a proposed adverse action was filed within the advance notice period. (2) In cases where the [p/c] is responsible for delaying the hearing process, the time limit for final administrative action will be extended by the length of the delay. For example, if the [p/c] requests a continuance of a hearing for 10 days, final administrative action will then be required within 100 days. When BHA does not render an order by the control date, the p/c is eligible for interim assistance Interim Assistance Interim assistance has nothing to do with eligibility or the merits of the appeal. Interim assistance is solely based on the timeliness of BHA s actions. As specified in 275.4(d), when final administrative action has not been rendered within the applicable time limit as described in 275.4(c), the office of the appropriate Deputy Secretary will notify the [CCIS] to authorize the subsidized child care which the [p/c] requested in his appeal until final administrative action is rendered. Interim assistance will be authorized effective with the first day after the applicable time limit expires. Final administrative action includes the hearing and subsequent decision by the hearing officer. The p/c does not have to request interim assistance; the CCIS must offer interim assistance as a matter of course. The CCIS must set a tracking date for 90 days following the date the appeal was filed with BHA as a reminder to begin interim assistance. REMINDER: The CCIS may need to adjust the tracking date accordingly if the p/c requests a delay in the appeal process because the control date for the administrative order will be extended by the length of the delay. Page 27 of 85

28 The p/c is eligible the first day following the expiration of the control date as discussed above in Manual Section Establishing Control. The interim assistance continues until the day the administrative order is rendered. If the p/c is appealing the initial eligibility determination, the p/c must be placed on the waiting list effective the date the Application was originally submitted to the CCIS. The CCIS must contact its Subsidy Coordinator if interim assistance is offered to a p/c. The p/c is NOT required to pay back the amount of the child care payment associated with the period of interim assistance if the BHA rules in favor of the CCIS. Interim assistance is NOT included in the total overpayment amount. If the hearing officer finds in favor of the CCIS and an overpayment is established, the period of subsidized child care the p/c received, as interim assistance is NOT included when determining the overpayment amount. EXAMPLE: The CCIS receives a timely appeal request from a p/c on 10/5 and the p/c requests subsidy continue pending a hearing decision. The CCIS date-stamps the appeal documentation and forwards the request to BHA. A decision is NOT reached and there is NO final administrative action with the 90-day timeframe (i.e., 1/3). Subsidy continues. On 3/19, a final administrative action is rendered and the hearing officer finds in favor of the CCIS. The CCIS is notified of the final administrative action on 3/21. Subsidized child care was received by the p/c from 10/5 through 3/23. The overpayment amount will include the amount of subsidized child care received from 10/5 through 1/3, but NOT the interim assistance portion (i.e., the amount of subsidized child care received from 1/4 through 3/23). See Manual Section Questions Interim Assistance Page 28 of 85

29 Scheduling a Hearing As specified in 275.4(e), hearings will be scheduled in accordance with the following: Hearings will be scheduled to be held as soon as possible, allowing at least 10 days notice to be given to the [p/c] and his representative or a lesser time if requested by the household. The [p/c] who wishes to postpone the hearing shall contact the hearing officer and provide a reason for the request. The hearing officer may approve the request for postponement or continuation of the hearing. The hearing will be rescheduled as soon as possible. In cases where the [p/c] is responsible for delaying the hearing process, the time limit for final administrative action is extended by the length of the delay as described in 275.4(c) Group Hearings As specified in 275.4(e)(6)(i), group hearings will be held under the following circumstances: (A) Whenever two or more requests for a hearing are received from more than one [p/c] in the same county, and the issues are the same in that the sole issue involved is one of a Departmental regulation, and the facts are not in dispute, the hearings may be consolidated into a single group hearing. The scheduling and conducting of a group hearing will be discretionary with the hearing officer. (B) In group hearings, the regulations pertaining to fair hearings will apply. Thus, a [p/c] will be entitled, if he so desires, to present his own case and be represented. (C) A [p/c] may request that his hearing be conducted as part of a group hearing. A [p/c] may demand that his hearing not be part of a group hearing. Page 29 of 85

30 Hearing Withdrawn As specified in 275.4(e)(6)(ii), hearing requests will be withdrawn only in accordance with the following: (A) A request for a hearing which meets the conditions as described in can only be dismissed without a hearing when it has been withdrawn by the [p/c] or his authorized representative in writing. Under no circumstances may the [CCIS] attempt to convince the [p/c] to withdraw his appeal. Under no circumstances should a CCIS try to dissuade a p/c from filing an appeal, even if the CCIS is confident that the p/c will not win and will have to repay the full amount of an overpayment. (B) If the [p/c] decides to withdraw his request for a hearing after the appeal has been forwarded to the BHA, the [CCIS] will immediately notify the BHA and send a copy of the withdrawal date-stamped. BHA must receive the withdrawal in writing. The CCIS must attempt to get the p/c s written withdrawal request immediately upon resolving the issue. If the p/c attends a prehearing conference that resolves the issue, the CCIS must obtain the p/c s written withdrawal prior to the p/c leaving the prehearing conference. See Manual Section Questions Hearing Withdrawn Hearing Abandoned As specified in 275.4(e)(6)(iii), appeals will be considered abandoned in accordance with the following: (A) If the [p/c] or his representative fails to appear at the scheduled hearing without good cause as determined by the hearing officer, the appeal will be considered to be abandoned and will be dismissed. (Also, set forth in (g). (B) If the [CCIS] fails to appear at the hearing, the [p/c s] appeal will be sustained by the hearing officer who will notify the [CCIS] of this decision in writing. (Also, set forth in (f). (C) If neither the [p/c] nor the [CCIS] or their representatives appear at the hearing, the hearing officer will reschedule the hearing. Page 30 of 85

31 At least 10 days prior to the date of the hearing, BHA will send a written notice to all parties involved with the appeal that contains the following information: The date, time and place of the hearing. The name, address and telephone number of the BHA representative to notify if the p/c is unable to attend the hearing. A statement that BHA will dismiss the hearing request if the p/c fails to appear at the hearing without good cause. NOTE: This includes the p/c not answering the telephone at the time of a telephone hearing. A copy of the Department s hearing procedures. Any other information that will help ensure the p/c understands the appeal process and will aid the p/c in presenting the facts of the case at the hearing Conducting a Hearing Prior to the hearing, the CCIS must: 1. Read and familiarize itself with the contents of the case file. 2. Prepare a fact sheet for reference during the hearing which includes: Names and relationships of all individuals in the family composition. Co/Record Number. Computation of income and/or co-payment, as appropriate. Chronological summary showing the dates and significant events that relate to the decision or action taken (i.e., the reason the notice was generated). All documentary evidence that supports the decision or action. A listing of the witnesses who have been identified and contacted to testify. Page 31 of 85

32 3. Send all information including documentary evidence that support the decision or action and a copy of the witness list that was sent to BHA to the p/c and the p/c s authorized representative a minimum of 5 calendar days prior to the hearing. 4. The CCIS may NOT introduce any evidence or documentation at the hearing if that evidence or documentation was not provided to all parties at least 5 calendar days prior to the hearing date. This includes the reports or investigative findings of the Office of the Inspector General (OIG), medical assessments, etc. As specified in 275.4(f), the hearing will be held before a hearing officer. The hearing officer will be a qualified agency official who has not been involved in any way with the decision or action in question or with the person or officer who is responsible for the decision or action up to the time of the hearing. The responsibilities of the hearing officer in conducting the hearing are as follows: (1) To conduct the hearing in an orderly but informal manner. (2) To obtain from the [p/c] and [CCIS] staff relevant testimony pertaining to the issues in question and to limit the testimony to that which has bearing on the issues involved. (3) To provide the [p/c] and the [CCIS] staff with the opportunity to present their case in an orderly manner, to present witnesses, to cross-examine witnesses and to advance pertinent facts or arguments. (4) To assure that documents and records presented or referred to at the hearing are made part of the hearing transcript. Persons at the hearing have the right to examine documents and records used as evidence prior to the hearing. (5) To obtain at the [CCIS s] expense and make part of the record a medical assessment other than that of the persons involved in making the original decision when the hearing involves medical issues such as those concerning a diagnosis, the report of an examining physician or the decision of a medical review team, and the hearing officer considers it necessary. (6) To render a decision based upon the facts and evidence as applied to Departmental regulations. Page 32 of 85

33 As specified in 275.4(g)(1), hearing proceedings will follow this order: (i) (ii) (iii) (iv) (v) (vi) (vii) The hearing officer will open with a statement of the purpose of the hearing, the procedure it will follow, who the deciding authority is and the way the decision will be transmitted to the [p/c]. The hearing officer will ask the [p/c] to state the issue(s) so that the issue(s) is/are identified at the commencement of the hearing. The [CCIS] will present its case, the facts and events leading to the decision which will be the basis for the decision or action, and the pertinent regulations involved. After a witness testifies, the [p/c] or his representative may cross-examine the witness. The [p/c] will present his case. After a witness testifies, the [CCIS] may crossexamine that witness. The hearing officer may question any witness or party at any time. (viii) Before terminating the hearing, the hearing officer will ask the [p/c] and his representative whether he wishes any further opportunity to speak or whether he has presented his case fully. (ix) The hearing officer may continue the hearing or adjourn it to another date. If the [p/c] has requested a continuance or is in some other manner responsible for a delay, the time for final administrative action will be extended by the length of the delay. As specified in 275.4(g)(2), the [CCIS] will prepare for the hearing so that evidence considered in making the decision or taking the action which is at issue and evidence that supports that decision or action will be introduced at the hearing in an orderly and concise manner. Relevant information which is presented at a hearing will include the following: (i) (ii) Names, relationships and ages of the persons affected, and the types of assistance involved. The decision or action which prompted the request for the hearing. Page 33 of 85

34 (iii) (iv) Description of the relevant facts and events leading to the decision or action plus evidence to support the decision or action, including identification of the pertinent regulations applied in making the decision. Detailed computation of the subsidized child care, income, or other pertinent information, before and after implementation of the [CCIS s] decision or action. As specified in 275.4(g)(6), Since the hearing decision will be based solely on the information presented at the hearing, failure to introduce relevant evidence may result in an adverse decision if the evidence presented is inadequate to support the decision. As specified in 275.4(g)(7), at the time of the hearing, the [CCIS] will be responsible for seeing that its case record contains current information on the issue(s) in question. See Manual Section Questions Conducting a Hearing TESTIFYING Testifying is defined as Giving truthful evidence as a witness by making a declaration under oath for the purpose of establishing or proving a fact. The CCIS s job as a witness in an appeal hearing is very important and is integral to preserving the validity of the subsidized child care program. Without the proper preparation and court etiquette, an unjust result may occur with regard to the hearing decision. The CCIS must be prepared to base appeal arguments on the regulations. Policy supports the regulations and provides guidance, but the regulations must be the center of the argument. The following are things the CCIS should do when testifying in an appeal hearing or other type of court proceeding: Before testifying, review the information and evidence you will present to justify your decision or action with regard to the issue in question to refresh your memory. Dress appropriately. A neat appearance and adherence to your agency s dress code are important so you appear to be professional and show the appropriate respect to the court. Avoid distracting mannerisms, such as waving or wringing your hands. Do not suck on candy or cough drops, and do not chew gum. Stand upright, if required, when taking the oath and say I do loudly and clearly. Maintain a serious demeanor. Answer only the question asked. Do not volunteer irrelevant information. Page 34 of 85

35 Listen carefully to the question being asked. If you do not understand the question, ask that it be repeated or clarified. Consider your response and take your time in responding. Explain your answer if it cannot be truthfully answered with yes or no. If your answer was not correctly stated, correct it immediately. If your answer was not presented clearly or concisely, clarify it immediately. Verbalize responses rather than nodding your head. Provide only facts based on your observations or the information in the case file. Avoid limiting your testimony by saying, that s all or nothing else happened. Instead, say, that s all I can recall at this time. You may remember something important as the hearing proceeds. Always speak clearly. Relax and try not to seem nervous. Be courteous, even if the p/c or his representative may appear discourteous. Do not appear cocky or you may lose the respect of the hearing officer. Do not lose your temper no matter how hard you are pressed. Remain calm and composed. Do not exaggerate. If you make an estimate about a timeframe, clarify that you are estimating. Do not argue with the hearing officer, the p/c or his representative. Give confident answers. Avoid saying, I think or I believe. Do not guess, when answering a question. If you do not know the answer, say, I do not know the answer to that question. Answer all questions asked of you. Maintain good eye contact with the hearing officer when testifying. Always tell the truth and do not forget you are under oath. Never interrupt during another person s testimony by making faces (i.e., rolling your eyes or leering), sighing, scoffing, whispering or making comments. Wait until the person is completely finished answering the question before proceeding to the next question, when cross-examining a witness. See Manual Section Questions Testifying Page 35 of 85

36 HEARING DECISIONS As specified in 275.4(h)(1)(iv), Hearing officers may not render a decision on the validity of a Departmental regulation nor may they invalidate or modify a Departmental regulation. Hearing officers must, when necessary, interpret regulations when regulations are ambiguous. Hearing decisions receiving final administrative action are restricted to the case at issue and do not create a precedent or apply to an entire class unless the hearing involves an entire class. See Manual Section Questions Hearing Decisions Basis for Decision As specified in 275.4(h)(2), hearing decisions will be based on the following: (i) The hearing officer will restrict his decision to the hearing record, which will consist of testimony and exhibits introduced into the hearing and the notice of action taken by the [CCIS] and the appeal of the [p/c]. The hearing officer will make his adjudication in accordance with regulations established by the Department which have been promulgated in accordance with the Commonwealth Documents Law. (ii) Medical report(s) obtained at the direction of the hearing officer will become part of the hearing record. (iii) During or after the hearing. If either the [CCIS] or the [p/c] wishes to present additional exhibits after the conclusion of the hearing, the hearing officer may allow the record to be kept open for 5 working days for the exhibits which include briefs. Copies of exhibits introduced into the record, after the conclusion of the hearing, will be given to the hearing officer, the [CCIS], the [p/c] and his representative. Briefs may be accepted later than 5 working days, but not beyond 30 days after the hearing, if the [p/c] provides the hearing officer with an affidavit that the [p/c] has requested information from a third party which cannot be provided within 5 working days. If the [p/c] or his representative is waiting for information from a third party, a delay beyond 5 days will extend the time for final administrative action by the length of the delay Notice of Decision Page 36 of 85

37 As specified in 275.4(h)(3)(i), the notice of decision will specify the reasons for the decision and identify the supporting evidence. The notice of decision will also specify the eligibility of the [p/c] and, if relevant, the amount of the social services for which the [p/c] is eligible. In addition, it will inform the [p/c] that he has the right to appeal the decision to the Commonwealth Court if he is dissatisfied with it. Prior to appealing to the Commonwealth Court, the p/c will be afforded the opportunity to request reconsideration from the Secretary of the Department of Public Welfare. If the Secretary upholds the decision of BHA and finds in favor of the CCIS, the p/c has 30 calendar days from the date of the Secretary s decision to appeal to the Commonwealth Court. The CCIS will NOT continue to pay subsidized child care during the Commonwealth Court appeal process RECONSIDERATION As specified in 275.4(h)(4)(ii), Either party to a proceeding has 15 days from the date of the decision of the Director of the OHA within which to request reconsideration of that decision by the Secretary of the Department. The request must be in writing and must set forth in detail the basis upon which the request is made. The request should be addressed to the Secretary, but delivered to the Director, OHA, who, upon receipt of a request for reconsideration, will forward the entire file and the request to the Secretary within 1 working day of the receipt of the request. The Secretary will, within 15 working days from the date the request is received, respond in writing to the request. The Secretary may affirm, amend, or reverse the decision of the Director, or remand the case to the hearing officer for further findings of fact. Actions taken by the Secretary will be confined to matters of law and established departmental policy; no findings of fact made by the hearing examiner will be subject to reversal. The Secretary may, however, remand the case to the Director for further findings of fact. The following address must be used when sending a request for reconsideration to the Secretary of Public Welfare (Secretary): BHA 2330 Vartan Way, 2 nd floor Harrisburg, PA ATTN: Diane Wagner As specified in 275.4(h)(4)(iii), Requests for reconsideration will stay action proposed in the decision of the Director. As specified in 275.4(h)(4)(iv), In cases where there is a request for reconsideration, the time limit, 30 days, for appealing the decision of the Department to the Commonwealth Court will begin on the date the Secretary responds to the request. Page 37 of 85

38 As specified in 275.4(h)(4)(v), the request of the [p/c] for reconsideration and the response by the Secretary will not be subject to the time limits specified in 275.4(b). This means the 90-day limit does not apply and the p/c is NOT eligible for interim assistance if the response takes longer than 90 days. If the p/c requests reconsideration and the children remain in care, the CCIS may NOT discontinue subsidized child care until the Secretary responds to the request. When BHA renders a decision in the CCIS s favor and the p/c has opted to continue subsidy during the appeal process, the CCIS will continue to pay the subsidy for an additional 20 days. The CCIS must notify the p/c via the Appeal Decision Notification Letter that subsidized child care will end in 20 days unless the p/c requests reconsideration. When BHA renders a decision in the CCIS s favor and the p/c requests reconsideration, the CCIS must send an to the Bureau of Subsidized Child Care, Division of Policy, addressed to Karen Mercadante at kmercadant@pa.gov on the 16 th day following the date of the decision. The must include the name of the p/c and the BHA Docket Number. Do NOT send the prior to the 16 th day following the date of the decision. The CCIS will be notified by the Division of Policy if the p/c asks for reconsideration. If the CCIS is notified that the p/c requested reconsideration, subsidized child care will continue until a decision is rendered by the Secretary. If the Secretary upholds the decision of BHA and the CCIS, the CCIS will receive notice from the BHA regarding the decision. The CCIS will terminate subsidy 5 days from the date of the Secretary s notification letter. If the Secretary upholds the BHA s decision and finds in favor of the CCIS, the p/c has 30 days from the date of the Secretary s decision to appeal to the Commonwealth Court. The CCIS will NOT continue to pay for subsidized child care during the Commonwealth Court appeal process. If the p/c does not request reconsideration by the Secretary, the CCIS may proceed with overpayment collection when the 20-day period expires. See Manual Section Questions Reconsideration JURAS PRINCIPLE Once a p/c submits an appeal related to continued eligibility, the Juras Principle must be applied. The Juras Principle relates to whether the p/c can provide proof of eligibility for the period in question. If the p/c can produce proof of eligibility at any time between the date of the appeal and the appeal hearing, the CCIS must reinstate the p/c s eligibility. The CCIS must continue to follow established timelines for issuance of an AA and case closures. The Juras Principle relates only to case in which the p/c files a timely appeal. The CCIS must settle appeals in cases where verification provided to the CCIS, following the generation of an AA, indicates the family met the eligibility requirements during the period at issue in the appeal. Page 38 of 85

39 As specified in 275.5, this statement of policy provides a means for [CCIS agencies], and other administering agencies, to settle appeals in cases where verification provided to the [CCIS] subsequent to its adverse action on the case shows that the [p/c], in fact, met the substantive conditions of eligibility during the period of time at issue in the appeal. The question on appeal, therefore, is not whether the [CCIS] or administering agency acted properly based upon the information then available, but whether the [p/c] was eligible for the period of time at issue based upon evidence of eligibility the [p/c] is able to provide at or before the hearing. The CCIS is encouraged to settle appeals whenever possible. The issue of the p/c s late submission of verification is not considered and the CCIS can not withhold eligibility as long as the p/c establishes eligibility. The procedures for settling appeals are set forth in (relating to settling appeals and paying retroactive benefits statement of policy). The question on appeal is not whether the CCIS acted properly based upon the information then available, but whether the family was eligible for the period at issue based upon evidence of eligibility the p/c was able to provide at or before the hearing. In most instances, the CCIS will restore subsidy benefits retroactive to the date of the termination. NOTE: When the CCIS and the p/c are able to settle an appeal, the CCIS should follow its established process for a p/c to withdraw an appeal. When a p/c files a timely appeal of an AA, the CCIS must determine whether the p/c subsequently provided acceptable verification of eligibility relating back to the effective date of the AA. If this requirement is met, the CCIS must restore benefits retroactive to the effective date of termination, denial, reduction or suspension of benefits. EXAMPLES: 1. On 9/7, the CCIS sent an AA to Ms. Jones advising her that her subsidy would be terminated effective 9/20 due to her failure to provide verification of her employment income. On 9/26, she filed a timely appeal. On 10/4, prior to the hearing, Ms. Jones submitted to the CCIS acceptable verification of her employment income dating back to 9/7 and establishing her continued eligibility for subsidy. Since the verification established that she was eligible for subsidy as of the date subsidy was terminated, the CCIS must rescind its 9/7 termination action and restore benefits retroactive to 9/20. In this case, the verification provided by Ms. Jones subsequent to the closing action proved her eligibility for the period at issue in the appeal. 2. On 9/7, the CCIS sent an AA to Ms. Jones advising her that her subsidy would be terminated effective 9/20 due to her failure to provide verification of her employment income. On 9/25, she filed a timely appeal. On 10/4, prior to the hearing, she submitted to the CCIS acceptable verification of her employment income dating back to 9/14 and establishing her continued eligibility for subsidy. The verification indicates that she continues to work for the same employer for the same hours and pay. Ms. Jones established eligibility prior to the date the AA expired. The CCIS must rescind its 9/7 termination action and restore benefits retroactive to 9/20. Page 39 of 85

40 If the verification subsequently provided by the p/c does not relate all the way back to the effective date of the AA, but does establish eligibility as of a later date, the CCIS must restore benefits to the date on which the eligibility factor at issue in the appeal was met. EXAMPLES: BACKGROUND Appeal of an AA or Confirmation Notice: Ms. Jones submitted income verification during her redetermination that indicated she was receiving overtime pay and the addition of the overtime pay caused the family to be over the income limit. The CCIS spoke with Ms. Jones about the overtime pay. She stated she continued to receive overtime pay but did not know for how much longer. The CCIS explained that the family was over the income limit and generated an AA dated 9/7 advising Ms. Jones that the CCIS would discontinue/end her subsidy effective 9/20. On 9/25, she filed a timely appeal. 1. Ms. Jones requested care continue during appeal. Prior to the hearing, Ms. Jones provided the CCIS with verification that her overtime ended 10/4, which established eligibility for subsidy. Therefore, the CCIS must restore benefits retroactive to 10/4, the day she first met the eligibility condition at issue in the appeal. 2. Ms. Jones requested care continue during appeal. BHA scheduled the hearing to occur on 12/17. At the hearing Ms. Jones submitted paystubs dated 11/16, 11/30, 12/7 and 12/14. None of these paystubs included overtime pay. BHA determined eligibility effective 11/16. The CCIS may NOT require the family to complete a new application. The CCIS must process an overpayment from 9/20 through 11/ Ms. Jones requested care continue during appeal. BHA scheduled the hearing to occur on 12/17. BHA ruled in favor of the CCIS. Ms. Jones did not provide verification that established her eligibility after 9/20. The CCIS must process an overpayment from 9/20 through 10/4. BACKGROUND Appeal of an Ineligible or Enrollment Ineligible Notice: Ms. Jones submitted an application on 3/3 that indicated she had prospective employment to begin 3/31. On 3/31, the CCIS called Ms. Jones to verify her employment began as expected. Ms. Jones stated her employer pushed her start date to 4/21. The CCIS notified Ms. Jones of her ineligibility and right to appeal, and then generated an Ineligible Notice. Ms. Jones filed a timely appeal. BHA schedules a hearing on 6/5. The CCIS speaks with the p/c on 4/24 and she verifies that employment began on 4/21. The CCIS may NOT require the family to complete a new application. The CCIS reopens the case with discontinuous eligibility effective 4/21 and creates enrollments for the children. 1. There is a waiting list so the children are placed in on the waiting list effective 4/ There is no waiting list so the children are placed in Pre- Enrolled status effective 4/21 and funding is offered immediately. See Manual Section Questions Juras Principle Page 40 of 85

41 WORKING WITH THE CAO The CCIS must notify the appropriate CAO of all scheduled appeal hearings for CAO-related child care programs. The CAO is expected to participate in any appeal hearings related to CAO-related child care programs and provide testimony with regard to eligibility issues. The CCIS is expected to provide testimony regarding enrollment rules and co-payment assessment issues. The CCIS must give advance notice of any appeal and scheduled hearing related to Temporary Assistance for Needy Families (TANF) or Food Stamp/Supplemental Nutrition Assistance Program (FS/SNAP) child care cases. Advance notice includes providing the telephone number so the CAO has the option to attend the hearing by telephone. The BHA does NOT automatically notify the CAO of the scheduled appeal hearings related to these child care cases. Preparing for Appeal Related to FS/SNAP Child Care OCDEL became aware of two FS/SNAP child care appeal hearings in which ending care for employed FS/SNAP recipients was questioned. Based on the hearing outcomes, it is extremely important for each CCIS agency to have copies of the appropriate regulations to present during the hearing. These particular sections of both the state and federal regulations address the requirement that FS/SNAP child care may only be authorized while a p/c attends a CAO-approved work-related activity, not employment. Federal regulations in 7 CFR (relating to work provisions), discuss the FS/SNAP employment and training components and the dependent care reimbursements (child care) that may be authorized for participation in those components. Although some of these approved components may include the p/c receiving a stipend for participating (i.e., paid activities such as Paid Work Experience or Workfare), none of these components include employment as an allowable activity. The federal regulations are complex to navigate through so OCDEL has highlighted the section of the federal regulations pertaining to this issue with the specific areas of reference. In addition, the Department of Public Welfare s Office of Legal Counsel provided us with an explanation and references to our state regulations and public statute that support our policy that FS/SNAP child care may only be authorized for a p/c s participation in a CAO-approved work-related activity, not employment. As stated in the above referenced regulations and public statute, work-related activities may include participation in an unpaid or paid activity. Paid activity in this sense only applies to training for which the p/c receives a stipend for satisfactory participation, such as Paid Work Experience or Workfare, not employment. Both federal and state regulations do not allow the authorization of FS/SNAP child care for any time in which the p/c is actually employed. OCDEL is confident that the information will be very beneficial to the CCIS agencies when faced with an appeal hearing related to a FS/SNAP family s child care ending as a result of the p/c completing participation in a CAO-approved work-related activity and starting new employment. OCDEL strongly encourages all CCIS agencies to familiarize themselves with the regulations related to FS/SNAP child care so they may be prepared to use it in appeal hearings whenever necessary. The CCIS may review and print this information by clicking Relevant Regulations for FS/SNAP cases (p ). See Manual Section Questions Working with the CAO Page 41 of 85

42 OVERRIDING ELIGIBILITY There will be circumstances related to appeal that require the CCIS to override eligibility for an individual and/or a case. EXAMPLE: The CCIS generates an AA and the case closes during the nightly batch process on the 14 th day (i.e., the day after the AA expires). The p/c submitted an appeal within 10 calendar days and requests care continue, but the CCIS was unable to process the request until after the case is closed. The CCIS must reopen the case with continuous eligibility and reinstate care back to the date care was discontinued. In order to reopen the case with continuous eligibility, the CCIS may need to override eligibility to Eligible, select Appeal as the Override Code and enter an Override Comment. Page 42 of 85

43 NOTE: The CCIS cannot override eligibility to continue care in an Intake/Pending case. Care may NOT continue when the p/c appeals an Ineligible or Enrollment Ineligible Notice because care never began. If the child was on the waiting list, the child will maintain his position on the waiting list. If an advocate approaches the CCIS directing the CCIS to begin care in response to an appeal received by a p/c receiving TANF or FS/SNAP benefits, the CCIS must contact the subsidy coordinator to escalate the issue to OCDEL Policy staff for resolution. Page 43 of 85