[Code of Federal Regulations]
[Title 45, Volume 2]
[Revised as of January 1, 2008]
From the U.S. Government Printing Office via GPO Access
[CITE: 45CFR205.10]

[Page 20-24]
 
                        TITLE 45--PUBLIC WELFARE
 
     CHAPTER II--OFFICE OF FAMILY ASSISTANCE (ASSISTANCE PROGRAMS), 
ADMINISTRATION FOR CHILDREN AND FAMILIES, DEPARTMENT OF HEALTH AND HUMAN 
                                SERVICES
 
PART 205_GENERAL ADMINISTRATION_PUBLIC ASSISTANCE PROGRAMS--Table of Contents
 
Sec.  205.10  Hearings.

    (a) State plan requirements. A State plan under title I, IV-A, X, 
XIV, or XVI(AABD) of the Social Security Act shall provide for a system 
of hearings under which:
    (1) The single State agency responsible for the program shall be 
responsible for fulfillment of hearing provisions which shall provide 
for:
    (i) A hearing before the State agency, or
    (ii) An evidentiary hearing at the local level with a right of 
appeal to a State agency hearing. Where a State agency adopts a system 
of evidentiary hearings with an appeal to a State agency hearing, it 
may, in some political subdivisions, permit local evidentiary hearings, 
and in others, provide for a single hearing before the State agency. 
Under this requirement hearings shall meet the due process standards set 
forth in the U.S. Supreme Court decision in Goldberg v. Kelly, 397 U.S. 
254 (1970) and the standards set forth in this section.
    (2) Hearing procedures shall be issued and publicized by the State 
agency. Such procedures shall provide for a face-to-face hearing or, at 
State option, a hearing by telephone when the applicant or recipient 
also agrees. Under this provision, the State shall assure that the 
applicant or recipient is afforded all rights as specified in this 
section, whether the hearing is face-to-face or by telephone;
    (3) Every applicant or recipient shall be informed in writing at the 
time of application and at the time of any action affecting his claim:
    (i) Of his right to a hearing, as provided in paragraph (a)(5) of 
this section;
    (ii) Of the method by which he may obtain a hearing;

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    (iii) That he may be represented by an authorized representative, 
such as legal counsel, relative, friend, or other spokesman, or he may 
represent himself.
    (4) In cases of intended action to discontinue, terminate, suspend 
or reduce assistance or to change the manner or form of payment to a 
protective, vendor, or two-party payment under Sec.  234.60:
    (i) The State or local agency shall give timely and adequate notice, 
except as provided for in paragraphs (a)(4) (ii), (iii), or (iv) of this 
section. Under this requirement:
    (A) Timely means that the notice is mailed at least 10 days before 
the date of action, that is, the date upon which the action would become 
effective;
    (B) Adequate means a written notice that includes a statement of 
what action the agency intends to take, the reasons for the intended 
agency action, the specific regulations supporting such action, 
explanation of the individual's right to request an evidentiary hearing 
(if provided) and a State agency hearing, the circumstances under which 
assistance is continued if a hearing is requested, and if the agency 
action is upheld, that such assistance must be repaid under title IV-A, 
and must also be repaid under titles I, X, XIV or XVI (AABD) if the 
State plan provides for recovery of such payments.
    (ii) The agency may dispense with timely notice but shall send 
adequate notice not later than the date of action when:
    (A) The agency has factual information confirming the death of a 
recipient or of the AFDC payee when there is no relative available to 
serve as new payee;
    (B) The agency receives a clear written statement signed by a 
recipient that he no longer wishes assistance, or that gives information 
which requires termination or reduction of assistance, and the recipient 
has indicated, in writing, that he understands that this must be the 
consequence of supplying such information;
    (C) The recipient has been admitted or committed to an institution, 
and further payments to that individual do not qualify for Federal 
financial participation under the State plan;
    (D) The recipient has been placed in skilled nursing care, 
intermediate care or long-term hospitalization;
    (E) The claimant's whereabouts are unknown and agency mail directed 
to him has been returned by the post office indicating no known 
forwarding address. The claimant's check must, however, be made 
available to him if his whereabouts become known during the payment 
period covered by a returned check;
    (F) A recipient has been accepted for assistance in a new 
jurisdiction and that fact has been established by the jurisdiction 
previously providing assistance;
    (G) An AFDC child is removed from the home as a result of a judicial 
determination, or voluntarily placed in foster care by his legal 
guardian;
    (H) For AFDC, the agency takes action because of information the 
recipient furnished in a monthly report or because the recipient has 
failed to submit a complete or a timely monthly report without good 
cause. (See Sec.  233.37);
    (I) A special allowance granted for a specific period is terminated 
and the recipient has been informed in writing at the time of initiation 
that the allowance shall automatically terminate at the end of the 
specified period;
    (J) The agency has made a presumption of mismanagement as a result 
of a recipient's nonpayment of rent and provides for post hearings in 
such circumstances;
    (K) An individual's payment is suspended or reduced for failure to 
meet a payment after performance obligation as set forth at Sec.  
233.101(b)(2)(iv) (B) or (C) of this chapter. In addition to the 
contents set forth in paragraph (a)(4)(i)(B) of this section, the 
adequate notice must advise the individual of the right to have 
assistance immediately reinstated retroactive to the date of action at 
the previous month's level pending the hearing decision if he or she 
makes a request for a hearing and reinstatement within 10 days after the 
date of the notice.
    (iii) When changes in either State or Federal law require automatic 
grant adjustments for classes of recipients,

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timely notice of such grant adjustments shall be given which shall be 
``adequate'' if it includes a statement of the intended action, the 
reasons for such intended action, a statement of the specific change in 
law requiring such action and a statement of the circumstances under 
which a hearing may be obtained and assistance continued.
    (iv) When the agency obtains facts indicating that assistance should 
be discontinued, suspended, terminated, or reduced because of the 
probable fraud of the recipient, and, where possible, such facts have 
been verified through collateral sources, notice of such grant 
adjustment shall be timely if mailed at least five (5) days before 
action would become effective.
    (5) An opportunity for a hearing shall be granted to any applicant 
who requests a hearing because his or her claim for financial assistance 
(including a request for supplemental payments under Sec. Sec.  233.23 
and 233.27) is denied, or is not acted upon with reasonable promptness, 
and to any recipient who is aggrieved by any agency action resulting in 
suspension, reduction, discontinuance, or termination of assistance, or 
determination that a protective, vendor, or two-party payment should be 
made or continued. A hearing need not be granted when either State or 
Federal law requires automatic grant adjustments for classes of 
recipients unless the reason for an individual appeal is incorrect grant 
computation.
    (i) A request for a hearing is defined as a clear expression by the 
claimant (or his authorized representative acting for him), to the 
effect that he wants the opportunity to present his case to higher 
authority. The State may require that such request be in written form in 
order to be effective;
    (ii) The freedom to make such a request shall not be limited or 
interfered with in any way. The agency may assist the claimant to submit 
and process his request;
    (iii) The claimant shall be provided reasonable time, not to exceed 
90 days, in which to appeal an agency action;
    (iv) Agencies may respond to a series of individual requests for 
hearing by conducting a single group hearing. Agencies may consolidate 
only cases in which the sole issue involved is one of State or Federal 
law or policy or changes in State or Federal law. In all group hearings, 
the policies governing hearings must be followed. Thus, each individual 
claimant shall be permitted to present his own case or be represented by 
his authorized representative;
    (v) The agency may deny or dismiss a request for a hearing where it 
has been withdrawn by the claimant in writing, where the sole issue is 
one of State or Federal law requiring automatic grant adjustments for 
classes of recipients, where a decision has been rendered after a WIN 
hearing before the manpower agency that a participant has, without good 
cause, refused to accept employment or participate in the WIN program, 
or has failed to request such a hearing after notice of intended action 
for such refusal, or where it is abandoned. Abandonment may be deemed to 
have occurred if the claimant, without good cause therefor, fails to 
appear by himself or by authorized representative at the hearing 
scheduled for such claimant.
    (6) If the recipient requests a hearing within the timely notice 
period:
    (i) Assistance shall not be suspended, reduced, discontinued or 
terminated (but is subject to recovery by the agency if its action is 
sustained), until a decision is rendered after a hearing, unless:
    (A) A determination is made at the hearing that the sole issue is 
one of State or Federal law or policy, or change in State or Federal law 
and not one of incorrect grant computation;
    (B) A change affecting the recipient's grant occurs while the 
hearing decision is pending and the recipient fails to request a hearing 
after notice of the change;
    (C) The recipient specifically requests that he or she not receive 
continued assistance pending a hearing decision; or
    (D) The agency has made a presumption of mismanagement as a result 
of a recipient's nonpayment of rent and provides for the opportunity for 
a hearing after the manner or form of payment has been changed for such 
cases in accordance with Sec.  234.60 (a)(2) and (a)(11).

[[Page 23]]

    (ii) The agency shall promptly inform the claimant in writing if 
assistance is to be discontinued pending the hearing decision; and
    (iii) In any case where the decision of an evidentiary hearing is 
adverse to the claimant, he shall be informed of and afforded the right 
to make a written request, within 15 days of the mailing of the 
notification of such adverse decision, for a State agency hearing and of 
his right to request a de novo hearing. Unless a de novo hearing is 
specifically requested by the appellant, the State agency hearing may 
consist of a review by the State agency hearing officer of the record of 
the evidentiary hearing to determine whether the decision of the 
evidentiary hearing officer was supported by substantial evidence in the 
record. Assistance shall not be continued after an adverse decision to 
the claimant at the evidentiary hearing.
    (7) A State may provide that a hearing request made after the date 
of action (but during a period not in excess of 10 days following such 
date) shall result in reinstatement of assistance to be continued until 
the hearing decision, unless (i) the recipient specifically requests 
that continued assistance not be paid pending the hearing decision; or 
(ii) at the hearing it is determined that the sole issue is one of State 
or Federal law or policy. In any case where action was taken without 
timely notice, if the recipient requests a hearing within 10 days of the 
mailing of the notice of the action, and the agency determines that the 
action resulted from other than the application of State or Federal law 
or policy or a change in State or Federal law, assistance shall be 
reinstated and continued until a decision is rendered after the hearing, 
unless the recipient specifically requests that continued assistance not 
be paid pending the hearing decision.
    (8) The hearing shall be conducted at a reasonable time, date, and 
place, and adequate preliminary written notice shall be given.
    (9) Hearings shall be conducted by an impartial official (officials) 
or designee of the agency. Under this requirement, the hearing official 
(officials) or designee shall not have been directly involved in the 
initial determination of the action in question.
    (10) When the hearing involves medical issues such as those 
concerning a diagnosis, an examining physician's report, or a medical 
review team's decision, a medical assessment other than that of the 
person or persons involved in making the original decision shall be 
obtained at agency expense and made part of the record if the hearing 
officer considers it necessary.
    (11) In respect to title IV-C, when the appeal has been taken on the 
basis of a disputed WIN registration requirement, exemption 
determination or finding of failure to appear for an appraisal 
interview, a representative of the local WIN manpower agency shall, 
where appropriate, participate in the conduct of the hearing.
    (12) The hearing shall include consideration of:
    (i) An agency action, or failure to act with reasonable promptness, 
on a claim for financial assistance, which includes undue delay in 
reaching a decision on eligibility or in making a payment, refusal to 
consider a request for or undue delay in making an adjustment in 
payment, and discontinuance, termination or reduction of such 
assistance;
    (ii) Agency decision regarding:
    (A) Eligibility for financial assistance in both initial and 
subsequent determinations,
    (B) Amount of financial assistance or change in payments,
    (C) The manner or form of payment, including restricted or 
protective payments, even though no Federal financial participation is 
claimed.
    (13) The claimant, or his representative, shall have adequate 
opportunity:
    (i) To examine the contents of his case file and all documents and 
records to be used by the agency at the hearing at a reasonable time 
before the date of the hearing as well as during the hearing;
    (ii) At his option, to present his case himself or with the aid of 
an authorized representative;
    (iii) To bring witnesses;
    (iv) To establish all pertinent facts and circumstances;
    (v) To advance any arguments without undue interference;

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    (vi) To question or refute any testimony or evidence, including 
opportunity to confront and cross-examine adverse witnesses.
    (14) Recommendations or decisions of the hearing officer or panel 
shall be based exclusively on evidence and other material introduced at 
the hearing. The transcript or recording of testimony and exhibits, or 
an official report containing the substance of what transpired at the 
hearing, together with all papers and requests filed in the proceeding, 
and the recommendation or decision of the hearing officer or panel shall 
constitute the exclusive record and shall be available to the claimant 
at a place accessible to him or his representative at a reasonable time.
    (15) Decisions by the hearing authority shall:
    (i) In the event of an evidentiary hearing, consist of a memorandum 
decision summarizing the facts and identifying the regulations 
supporting the decision;
    (ii) In the event of a State agency de novo hearing, specify the 
reasons for the decision and identify the supporting evidence and 
regulations.

Under this requirement no persons who participated in the local decision 
being appealed shall participate in a final administrative decision on 
such a case.
    (16) Prompt, definitive, and final administrative action shall be 
taken within 90 days from the date of the request for a hearing.
    (17) The claimant shall be notified of the decision in writing and, 
to the extent it is available to him, of his right to appeal to State 
agency hearing or judicial review.
    (18) When the hearing decision is favorable to the claimant, or when 
the agency decides in favor of the claimant prior to the hearing, the 
agency shall promptly make corrective payments retroactively to the date 
the incorrect action was taken.
    (19) All State agency hearing decisions shall be accessible to the 
public (subject to provisions of safeguarding public assistance 
information).
    (b) Federal financial participation. Federal financial participation 
is available for the following items:
    (1) Payments of assistance continued pending a hearing decision.
    (2) Payments of assistance made to carry out hearing decisions, or 
to take corrective action after an appeal but prior to hearing, or to 
extend the benefit of a hearing decision or court order to others in the 
same situation as those directly affected by the decision or order. Such 
payments may be retroactive in accordance with applicable Federal 
policies on corrective payments.
    (3) Payments of assistance within the scope of Federally aided 
public assistance programs made in accordance with a court order.
    (4) Administrative costs incurred by the agency for:
    (i) Providing transportation for the claimant, his representative 
and witnesses to and from the place of the hearing;
    (ii) Meeting other expenditures incurred by the claimant in 
connection with the hearing;
    (iii) Carrying out the hearing procedures, including expenses of 
obtaining an additional medical assessment.

[38 FR 22007, Aug. 15, 1973, as amended at 44 FR 17941, Mar. 23, 1979; 
45 FR 20480, Mar. 28, 1980; 47 FR 5673, Feb. 5, 1982; 47 FR 47827, Oct. 
28, 1982; 51 FR 9202, Mar. 18, 1986; 53 FR 36579, Sept. 21, 1988; 57 FR 
30425, July 9, 1992]