67:17:02:01.  Right to hearing. An individual or entity that is aggrieved by the department's action or inaction taken under the provisions of ARSD Title 67 may request a hearing. A hearing is conducted under the provisions of this chapter and SDCL chapter 1-26. A hearing is not allowed if either state or federal law requires automatic grant adjustments unless the reason for the hearing is an incorrect computation.

 

          Source: SL 1975, ch 16, § 1; transferred from § 67:12:03:01, 2 SDR 71, effective April 29, 1976; 7 SDR 66, 7 SDR 89, effective July 1, 1981; 8 SDR 58, effective November 29, 1981; 35 SDR 166, effective December 24, 2008.

          General Authority: SDCL 28-1-24.1.

          Law Implemented: SDCL 28-1-24.1.

 

          67:17:02:02.  Right to be informed of hearing process. The department shall inform each applicant and recipient of the right to request a hearing. The department shall print this information on all applications for public assistance and on all formal notices issued by the department concerning an action taken.

 

          Source: SL 1975, ch 16, § 1; transferred from § 67:12:03:02, 2 SDR 71, effective April 29, 1976; 6 SDR 66, effective January 10, 1980; 7 SDR 66, 7 SDR 89, effective July 1, 1981; 35 SDR 166, effective December 24, 2008.

          General Authority: SDCL 28-1-24.1.

          Law Implemented: SDCL 28-1-24.1.

 

          67:17:02:03.  Hearing requests. To appeal a department action or inaction made under the food stamp program, the individual must clearly express to the department an intent to appeal. The request for an appeal may be made either orally or in writing.

 

          For all other department programs, to appeal a department action or inaction the individual or an individual representing the entity affected must submit a written and signed request for a hearing to the Department of Social Services, Office of Administrative Hearings. A person assisting an individual such as a relative, friend, or attorney may request a hearing on the individual's behalf.

 

          When making a request for a hearing, the individual requesting the appeal must indicate what department action is being appealed. If the reason for the appeal is unclear, any party involved in the action may request the Office of Administrative Hearings to further clarify the issue.

 

          If the entity requesting a hearing is a corporation, the corporation must be represented throughout the hearing process by its attorney.

 

          Source: SL 1975, ch 16, § 1; transferred from § 67:12:03:03, 2 SDR 71, effective April 29, 1976; 7 SDR 66, 7 SDR 89, effective July 1, 1981; 35 SDR 166, effective December 24, 2008.

          General Authority: SDCL 28-1-24.1.

          Law Implemented: SDCL 28-1-24.1.

 

          67:17:02:04.  Time limits for requesting hearing. A request for a fair hearing must be made within one of the following time limits:

 

          (1)  Ten days after a nursing facility receives the department's final decision on issues relating to resident assessments and the resulting payment adjustment made under the provisions of chapter 67:45:03;

 

          (2)  Ten days after a decision entered as a result of a review on a petition to stay service of a proposed withholding action for the child support enforcement program;

 

          (3)  Ten days after a decision is entered as a result of a review concerning the furnishing of information to consumer reporting agencies;

 

          (4)  Ten days after a decision is entered as a result of a review concerning restricting the issuance or renewal of an absent parent's driver's, professional, sporting, or recreational license, registration, certification, or permit;

 

          (5)  Thirty days after the department sends its final audit report to a nursing facility or up to 60 days after the department sends its final audit report to a nursing facility and the department has granted an extension of time to request a fair hearing to the facility;

 

          (6)  Thirty days after notice of the action complained of or of the conference decision or 30 days after action should have been taken by the department as provided by law or rule;

 

          (7)  Thirty days after the department sends its written decision as a result of an informal review of a request to amend, expunge information, or remove a record from the central registry;

 

          (8)  Thirty days after the department notifies a child care provider or a recipient of child care services of an intended action;

 

          (9)  Sixty days after an action is taken by the department or after any loss of benefits relating to the energy crisis intervention program or the low income energy assistance program;

 

          (10)  Ninety days after an action is taken by the department or after any loss of benefits relating to food stamps; or

 

          (11)  Ten days after a decision is entered as a result of a review concerning a lottery setoff for the child support enforcement program.

 

          Source: SL 1975, ch 16, § 1; transferred from § 67:12:03:04, 2 SDR 71, effective April 29, 1976; 3 SDR 26, effective October 6, 1976; 6 SDR 66, effective January 10, 1980; 7 SDR 66, 7 SDR 89, effective July 1, 1981; 10 SDR 30, effective October 3, 1983; 14 SDR 97, effective January 17, 1988; 15 SDR 100, effective January 12, 1989; 16 SDR 26, effective August 13, 1989; 18 SDR 112, effective January 9, 1992; 18 SDR 134, effective February 25, 1992; 20 SDR 28, effective August 31, 1993; 21 SDR 8, effective July 25, 1994; 22 SDR 188, effective July 8, 1996; 26 SDR 21, effective August 24, 1999; 28 SDR 112, effective February 20, 2002; 35 SDR 166, effective December 24, 2008.

          General Authority: SDCL 28-1-24.1.

          Law Implemented: SDCL 28-1-24.1.

 

          Collateral Reference: § 1703.1 -- Time period for requesting a hearing, South Dakota Food Stamp Program Certification and Accountability Manual.

 

          Cross-References:

          Request for fair hearing -- Low income energy assistance program, § 67:15:01:49.

          Request for fair hearing -- Energy crisis intervention program, § 67:15:04:07.

          Request for fair hearing -- Withholding action -- Child support enforcement program, § 67:18:01:58.02.

          Request for fair hearing -- Furnishing information to consumer reporting agencies -- Child support enforcement program, § 67:18:01:49.03.

          Request for fair hearing -- Audit reports to nursing facilities, § 67:16:04:37.

          Time limits for requesting fair hearing, § 67:16:04:38.

          Request to amend, expunge information, or remove record -- Informal review -- Fair hearing, § 67:14:39:06.

          Fair hearing -- Resident assessments and payment adjustments, § 67:45:03:12.

          Administrative review -- Lottery set off, § 67:18:01:58.03.

          Administrative review and fair hearing before restricting issuance of license, registration, certification, or permit, § 67:18:01:62.

 

          67:17:02:11.  Time and place of hearing. Repealed.

 

          Source: SL 1975, ch 16, § 1; transferred from § 67:12:03:11, 2 SDR 71, effective April 29, 1976; 7 SDR 66, 7 SDR 89, effective July 1, 1981; 17 SDR 50, effective October 7, 1990; repealed, 35 SDR 166, effective December 24, 2008.

 

          67:17:02:11.01.  Hearings conducted by electronic means. The hearing examiner may hold a hearing by telephone conference or by electronic or digital means.

 

          For telephonic, electronic, or digital hearings, all parties must submit their proposed exhibits to the hearing examiner and to the other parties involved at least five calendar days before the hearing date.

 

          Source: 17 SDR 50, effective October 7, 1990; 23 SDR 192, effective May 22, 1997; 35 SDR 166, effective December 24, 2008.

          General Authority: SDCL 28-1-24.1.

          Law Implemented: SDCL 28-1-24.1.

 

          67:17:02:12.  Written notice of hearing. Unless waived by all parties, at least 10 days before the hearing the department shall send a written notice of the hearing to the parties involved in the action. In addition to the information required under SDCL 1-26-17, the notice shall contain the following information:

 

          (1)  A statement that the parties must be present at the hearing with their witnesses;

          (2)  A statement that the parties must have all the exhibits and documents intended to be introduced into evidence;

          (3)  A statement that the parties have the right to request the hearing examiner to issue subpoenas for witnesses or documentary evidence;

          (4)  A statement that the parties may represent themselves, may be represented by an attorney, or may be assisted by another person such as a friend or relative;

          (5)  A statement that a corporation must be represented by its attorney;

          (6)  A statement that the department is not responsible for the appellant's legal fees; and

          (7)  A statement that the department is not responsible for the expenses of any individuals appearing on behalf of the appellant.

 

          Source: SL 1975, ch 16, § 1; transferred from § 67:12:03:12, 2 SDR 71, effective April 29, 1976; 3 SDR 26, effective October 6, 1976; 6 SDR 66, effective January 10, 1980; 7 SDR 66, 7 SDR 89, effective July 1, 1981; 35 SDR 166, effective December 24, 2008.

          General Authority: SDCL 28-1-24.1.

          Law Implemented: SDCL 28-1-24.1.

 

          Cross-Reference: Default, § 67:17:02:14.

 

          67:17:02:13.  Dismissal. The hearing examiner may dismiss an appeal under any of the following circumstances:

 

          (1)  Except for appeals involving medical assistance, the appellant indicates in writing or verbally that the appellant wishes to withdraw the appeal;

 

          (2)  For appeals involving medical assistance, the appellant has submitted to the department a written request to withdraw the appeal;

 

          (3)  The appellant and the department resolve the case before the hearing examiner enters a final decision;

 

          (4)  The sole issue is one of state or federal law requiring automatic grant adjustments for classes of recipients; or

 

          (5)  The appellant is in default according to § 67:17:02:14.

 

          Source: SL 1975, ch 16, § 1; transferred from § 67:12:03:13, 2 SDR 71, effective April 29, 1976; 7 SDR 66, 7 SDR 89, effective July 1, 1981; 23 SDR 122, effective February 6, 1997; 35 SDR 166, effective December 24, 2008.

          General Authority: SDCL 28-1-24.1.

          Law Implemented: SDCL 28-1-24.1.

 

          Cross-Reference: Informal resolution, § 67:17:02:16.

 

          67:17:02:14.  Default. An appellant is considered to be in default if one of the following circumstances exists:

 

          (1)  The appellant failed to appear at the hearing, did not request an exemption for appearing at the hearing at least 10 days before the hearing, and the Office of Administrative Hearings did not grant an exemption from this requirement before the hearing;

 

          (2)  The appellant fails to reply within 10 days to the hearing examiner's request to show good cause for the appellant's failure to appear at a hearing; or

 

          (3)  The hearing examiner finds that the reason the appellant failed to appear does not constitute good cause.

 

          Source: SL 1975, ch 16, § 1; transferred from § 67:12:03:14, 2 SDR 71, effective April 29, 1976; 6 SDR 66, effective January 10, 1980; 7 SDR 66, 7 SDR 89, effective July 1, 1981; 35 SDR 166, effective December 24, 2008.

          General Authority: SDCL 28-1-24.1.

          Law Implemented: SDCL 28-1-24.1.

 

          67:17:02:15.  Appellant improperly influenced to withdraw or abandon fair hearing. Repealed.

 

          Source: SL 1975, ch 16, § 1; transferred from § 67:12:03:15, 2 SDR 71, effective April 29, 1976; 7 SDR 66, 7 SDR 89, effective July 1, 1981; repealed, 35 SDR 166, effective December 24, 2008.

 

          67:17:02:16.  Informal resolution. Any time before a final decision is entered, the department may take action to resolve the case. If the appellant is not represented by an attorney, the department may contact the appellant directly. If the appellant is represented by an attorney, department contact is limited to the appellant's attorney. If the department resolves the case, the department must inform the hearing examiner immediately.

 

          Source: SL 1975, ch 16, § 1; transferred from § 67:12:03:16, 2 SDR 71, effective April 29, 1976; 7 SDR 66, 7 SDR 89, effective July 1, 1981; 35 SDR 166, effective December 24, 2008.

          General Authority: SDCL 28-1-24.1.

          Law Implemented: SDCL 28-1-24.1.

 

          67:17:02:17.  Who may attend the hearing. Hearings may be attended only by the department and the appellant and persons whom the appellant may wish to have represent or assist the appellant. If the hearing involves a corporation, its attorney must represent the corporation at the hearing.

 

          Source: SL 1975, ch 16, § 1; transferred from § 67:12:03:17, 2 SDR 71, effective April 29, 1976; 7 SDR 66, 7 SDR 89, effective July 1, 1981; 35 SDR 166, effective December 24, 2008.

          General Authority: SDCL 28-1-24.1.

          Law Implemented: SDCL 28-1-24.1.

 

          67:17:02:23.  When hearing involves medical issues. Repealed.

 

          Source: SL 1975, ch 16, § 1; transferred from § 67:12:03:23, 2 SDR 71, effective April 29, 1976; 7 SDR 66, 7 SDR 89, effective July 1, 1981; repealed, 35 SDR 166, effective December 24, 2008.

 

          67:17:02:27.  Final decision by secretary. Based on the transcript or recording of testimony, the exhibits, and the proposed decision, the secretary or a designee shall enter a final decision accepting, rejecting, or modifying the proposed decision. If the hearing involves a food stamp issue, the decision must be mailed to the parties involved within 60 days after the request for the hearing. For all other hearings, the decision must be mailed to the parties involved within 90 days from the date of the request for the hearing.

 

          If a continuance of a hearing is requested and the parties to the action stipulate to the continuance, the time allowed for mailing the final decision is extended for the same number of days for which the continuance is granted.

 

          Source: SL 1975, ch 16, § 1; transferred from § 67:12:03:27, 2 SDR 71, effective April 29, 1976; 3 SDR 26, effective October 6, 1976; 6 SDR 66, effective January 10, 1980; 7 SDR 66, 7 SDR 89, effective July 1, 1981; 35 SDR 166, effective December 24, 2008.

          General Authority: SDCL 28-1-24.1.

          Law Implemented: SDCL 28-1-24.1.

 

          Cross-References:

          Tentative or proposed decision served on parties -- Contents -- Waiver, SDCL 1-26-24.

          Request for a hearing to release name of complainant in unsubstantiated investigation, SDCL 26-8A-11.

 

          Collateral References: § 7120 -- Fair hearing time frames; § 7133 -- Household requests for postponements, South Dakota Food Stamp Program Certification and Accountability Manual.

 

          67:17:02:28.  Notice of decision. Repealed.

 

          Source: SL 1975, ch 16, § 1; transferred from § 67:12:03:28, 2 SDR 71, effective April 29, 1976; 3 SDR 26, effective October 6, 1976; 6 SDR 66, effective January 10, 1980; 7 SDR 66, 7 SDR 89, effective July 1, 1981; 17 SDR 50, effective October 7, 1990; repealed, 35 SDR 166, effective December 24, 2008.