Welfare Appeals: Fair Hearings

By Kimberly A. Hallquist, Esq

There may be times when even the most thorough and well thought out decision by a welfare administrator on a request for local assistance is met with less than enthusiastic agreement by the welfare applicant. In fact, the applicant may feel that the decision is completely wrong and that an injustice has occurred. When a decision is made by a local welfare administrator to grant assistance, to deny assistance, or to suspend assistance for non-compliance with guidelines, the applicant has a right to appeal that decision. If the applicant elects to appeal the decision, a fair hearing must be held.

Q. What is a fair hearing?
A fair hearing is the adjudicatory proceeding held at the request of an applicant for local welfare assistance who seeks review of the welfare administrator’s decision. The review is conducted by a neutral hearing officer, who will decide whether the welfare administrator’s decision was made in accordance with local welfare guidelines and state and federal laws. As the name implies, the hearing must be fair.

Q. Why does an applicant get to appeal the welfare administrator’s decision?
All persons have a constitutional right to be free of unfair, arbitrary or unreasonable action taken by the government. This includes applicants for welfare assistance whose aid has been denied, terminated or reduced. Affording a person the opportunity to a fair hearing conducted according to the principles of due process, including notice, the right to present evidence, to cross examine and to have findings supported by the evidence, ensures that the person’s constitutional rights are not violated.

The right to a hearing in a welfare case is authorized by statute. RSA 165:1, II (c) requires that local welfare guidelines include the process for appealing a decision relative to the granting of general assistance. For the applicant who is denied assistance in the first instance, for reasons other than noncompliance with the guidelines, the written notice of decision must contain the right to appeal within five days. In this case, there is nothing the applicant must do to come into compliance with the guidelines, as is the case below. However, the applicant may appeal the decision to deny assistance.

For the recipient who is receiving assistance but is being sanctioned, the statute contains specific actions to be taken on the part of the municipality. It states that a person otherwise eligible for assistance, but who has become ineligible because of noncompliance with the local guidelines, shall not be found ineligible or suspended from assistance until he/she has been given a written notice stating the actions that must be taken to comply and a seven-day period within which to comply after receiving the notice. RSA 165:1-b, II. This notice can be the original notice of decision that contains the conditions for continued assistance. If the person does not comply within the seven days, the town or city may issue the person a written notice that the person is ineligible for assistance or suspended from assistance. The written notice must include a list of the guidelines with which the person is not in compliance, those actions necessary for compliance, and a written notice of the opportunity to request a hearing—commonly referred to as a fair hearing—within five days. RSA 165:1-b, III.

Q. Can an applicant appeal a decision that grants at least some assistance?
Yes. The opportunity to appeal the decision would mean little if a person could only appeal when the decision was a total denial of any and all assistance. Decisions that grant less than the assistance requested are also subject to review by appeal. Even if the applicant is satisfied with the assistance granted, the applicant may file a request for hearing because he or she feels that the conditions placed on continued assistance are unreasonable or impossible to comply with.

Q. Do we have to continue assisting the person while the appeal is pending?
Yes, if the person elects to continue the assistance during this time, the municipality must allow the assistance to continue in accordance with any prior eligibility determination. RSA 165:1-b, IV. However, if the person was found ineligible and was not receiving any assistance, the municipality does not have to provide assistance during the appeal process. If the person elects to continue receiving assistance and fails to prevail at the hearing, the suspension will start after the decision, and the aid must be repaid by the recipient.

Q. Do the statutes spell out the process for appealing a decision?
No, but the welfare statutes require that the municipality adopt guidelines, and the guidelines must contain, among other things, the process for appealing a decision relative to the granting of general assistance. RSA 165:1, II(b). That means the municipality must spell out the procedures for appeal of welfare decisions within the guidelines. The following answers, while not dictated by the welfare statutes, are consistent with the principles of due process.

Q. Does the request for fair hearing have to be in writing?
The local welfare guidelines may contain a requirement that the request be submitted in writing. However, in extraordinary circumstances when it is impossible for the applicant to submit the written request within deadline but the applicant has called and requested the appeal verbally, it may be advisable to accept that verbal request and schedule the hearing. Whether written or verbal, the statute is clear that the request for hearing must be made within five days. RSA 165:1-b, III.

The form to request a fair hearing should be included with any notice affecting the applicant’s request for assistance, including a notice to change amount of assistance given. As stated previously, the applicant has five days from the date of the decision to make the written request for a hearing. Ideally, the welfare administrator will discuss the applicant’s right to appeal during the interview so that there will be no confusion on the applicant’s rights, and responsibilities, to request an appeal. If a request for appeal is submitted, it is a good idea to attempt to contact the person to make sure that there is genuine disagreement and not just a misunderstanding about the assistance granted.

Q. When must the fair hearing be held?
The fair hearing must be held within seven working days of the receipt of the request. The welfare administrator shall give notice to the claimant setting the time and location of the hearing at least 48 hours in advance of the hearing. If the notice is mailed, it should be mailed at least 72 hours prior to the hearing. The claimant should be provided with a copy of the procedures that will be followed at the fair hearing and informed that they have the right to be represented. The welfare administrator may also have the assistance of legal counsel.

Q. Who conducts the fair hearing?
The governing body appoints a person (or board) to hear the appeal. The person selected is often referred to as the fair hearing officer or hearing officer. The hearing officer must be someone who has not had any contact with the case being appealed. This means that neither the welfare administrator nor the governing body can serve as the hearing officer. This ensures that the person selected to hear the matter has not prejudged the case. The hearing officer should be a person who is familiar with the welfare laws, fair minded, skilled at interviewing to obtain evidence and facts necessary for a fair determination, and capable of conducting the proceeding in a fair and orderly fashion.

It is important to remember that no one connected with the case should discuss the case with the fair hearing officer in advance of the hearing. This also includes the case record or other materials—these should not be forwarded to the hearing officer in advance of the hearing. The fair hearing will not be particularly fair if the hearing officer receives information (evidence) from one side of the case in advance, without the other side having the opportunity to respond or even know what is being said. This is referred to as ex-parte communication and must be avoided.

However, this is not to say that the claimant cannot see the case record in advance. The claimant and his or her representative should have access to the entire case file, including copies if requested, and all evidence that the welfare administrator intends to introduce at the hearing. In this way the claimant may properly prepare his or her case. The claimant should be informed of his or her coequal responsibility to provide copies of all documents he or she intends to present at the hearing to the welfare administrator in advance. If the claimant presents evidence at the hearing without sharing it in advance with the welfare administrator, the welfare administrator may request a 24-hour continuance. Once again, it is helpful to remember that this proceeding should be fair.

Q. Can a welfare administrator from another town or city serve as fair hearing officer?
Yes, so long as the person did not participate in the case under appeal. Thus, if the welfare administrator from the nearby town offered advice on the case or was involved in any way in assisting the welfare administrator in the town of the claimant, then he or she should not be asked to act as hearing officer.

Q. What happens at the fair hearing?
Both sides present their cases to the fair hearing officer. Although not as formal as a court proceeding, the fair hearing must be conducted in such a manner as to ensure due process of law. The burden of proof is on the claimant, who shall be required to establish his or her case by a preponderance of the evidence.

The welfare administrator should present a copy of the claimant’s file, including all documents used to reach the decision in question, to the hearing officer. If the claimant has not already requested a copy of the file, he or she should be given exactly what has been given to the hearing officer. If the claimant received a copy of the file previously, but new information has been added, that new information should be given to him or her. In short, all parties to the fair hearing should have exactly the same information available to them. The hearing officer should also have a copy of the local welfare guidelines and the applicable state statutes.

The hearing is the claimant’s opportunity to present evidence in support of his or her position that the welfare administrator’s decision was wrong. The welfare administrator likewise presents evidence to support the decision he or she made. Both sides may cross examine those who are offering evidence. The hearing officer listens to the testimony offered by the welfare administrator, the claimant and any witnesses called, reviews the record as introduced at the hearing and may ask questions of any witness to elicit facts pertinent to the matter.

Q. Is a fair hearing subject to the open meetings requirements of the Right to Know Law?
No, RSA 165:2-c provides that, notwithstanding any other provision of the law to the contrary, no town or city shall release the names, addresses or any other identifying information of those who are receiving aid. Moreover, the Right to Know Law allows a public body to meet in nonpublic session for consideration of matters which, if discussed in public, would likely adversely affect the reputation of any person, other than a member of the body itself, unless such person requests an open hearing. RSA 91-A:3, II(c). Thus, although the Right to Know Law does not contain a specific exception for local welfare issues, the prohibition against releasing information concerning welfare recipients together with the nonpublic session provisions for issues related to reputation, makes it reasonable to conclude that a fair hearing should not be open to the public. However, although the meeting is not open to the public, the claimant may include the people necessary to assist him or her at the fair hearing.

Q. Can the hearing officer overrule the decision of the welfare administrator and order the municipality to provide more assistance?
Yes. Within seven days of the fair hearing, the hearing officer must render a written decision. The decision must set forth the reasons for the decision and the facts on which the hearing officer relied to reach the decision. If the fair hearing decision does not affirm the welfare administrator’s original decision, it shall set forth the appropriate relief. In this case, the relief granted by the hearing officer is retroactive to the date of the action being appealed. This means that the municipality must render the assistance as ordered by the hearing officer, starting from the time the assistance would have been given had it not been originally denied.