File No. 34933
This rule was published in the July 1, 2011, issue (Vol. 2011, No. 13) of the Utah State Bulletin.
Workforce Services, Employment Development
Employment Support Programs
Notice of Proposed Rule
DAR File No.: 34933
Filed: 06/15/2011 05:29:15 PM
Purpose of the rule or reason for the change:
The purpose of this amendment is to meet federal guidelines and to streamline fair hearings.
Summary of the rule or change:
Pursuant to a recent audit by the Department of Agriculture, some issues were identified with the current language in the rules and one time limit. The food stamp regulations only allow 10 days for a client to request reopening for failure to participate in a hearing. The Department had allowed 30 days. This change is necessary to comply with federal regulations. Food stamp regulations use the term dismissal instead of default so that language has also been changed. Finally, the Department is asking clients to call 24 hours in advance of a hearing. This is because approximately 50% of clients do not participate in the hearing. If a client does not call in advance, another hearing can be scheduled for that time slot making better use of Department time and resources. A rehearing can be requested for clients who fail to call in advance.
State statutory or constitutional authorization for this rule:
- Subsection 35A-3-302(5)(b)
- Section 35A-1-104
- Subsection 35A-1-104(4)
- Section 35A-1-303
Anticipated cost or savings to:
the state budget:
This applies to federally-funded programs so there are no costs or savings to the state budget.
This is a federally-funded program so there are no costs or savings to the local government.
There will be no costs to small businesses to comply with these changes because this is a federally-funded program.
persons other than small businesses, businesses, or local governmental entities:
There will be no costs to any persons or businesses other than small businesses or government entities to comply with these changes because there are no costs or fees associated with these proposed changes.
Compliance costs for affected persons:
There are no compliance costs associated with these changes for any persons because this is a federally-funded program and there are no fees or costs associated with these proposed changes.
Comments by the department head on the fiscal impact the rule may have on businesses:
There are no compliance costs associated with this change. There are no fees associated with this change. There will be no cost to anyone to comply with these changes. There will be no fiscal impact on any business.
Kristen Cox, Executive Director
The full text of this rule may be inspected, during regular business hours, at the Division of Administrative Rules, or at:Workforce Services
140 E 300 S
SALT LAKE CITY, UT 84111-2333
Direct questions regarding this rule to:
- Suzan Pixton at the above address, by phone at 801-526-9645, by FAX at 801-526-9211, or by Internet E-mail at email@example.com
Interested persons may present their views on this rule by submitting written comments to the address above no later than 5:00 p.m. on:
This rule may become effective on:
Kristen Cox, Executive Director
R986. Workforce Services, Employment Development.
R986-100. Employment Support Programs.
R986-100-124. How Hearings Are Conducted.
(1) Hearings are held at the state level and not at the local level.
(2) Where not inconsistent with federal law or regulation governing hearing procedure, the Department will follow the Utah Administrative Procedures Act.
(3) Hearings for all programs listed in R986-100-102 and overpayments and IPVs in Section 35A-3-601 et seq. are declared to be informal.
(4) Hearings are conducted by an ALJ or a Hearing Officer in the Division of Adjudication. A Hearing Officer has all of the same rights, duties, powers and responsibilities as an ALJ under these rules and the terms are interchangeable.
(5) Hearings are [
usually] scheduled as telephone hearings.
(6) If the client prefers an in-person hearing the client
must contact the ALJ assigned to hear the case in advance of the
hearing and request that the hearing be converted to an in-person
hearing. An in-person hearing is conducted in one of the following
ways, at the option of the client: (a) the client can request that the hearing be conducted
in the office of the ALJ and appear personally before the ALJ,
but the Department representative and Department witnesses will
be allowed to participate by telephone; or
(b) the] client can participate from the local
with the witnesses and Department employees who work in
that particular Employment Center. The ALJ and any Department
employees or witnesses who are in another location will participate
from that location or locations by telephone].
(7) the Department is not responsible for any travel costs incurred by the client in attending an in-person hearing.
(8) the Division of Adjudication will permit collect calls from parties and their witnesses participating in telephone hearings.
R986-100-130. Default Order for Failure to Participate.
(1) The Department will issue a default
order if an obligor in an
and/or IPV ]case fails to participate in the
administrative process. Participation for an obligor means:
(a) signing and returning to the Department an approved stipulation for repayment and making all of the payments as agreed,
(b) requesting and participating in a hearing, or
(c) paying the overpayment in full.
(2) If a hearing has been scheduled at the
request of a client or an obligor
and the client or obligor
fails to appear at or participate in the hearing, either in person
or through a representative, the ALJ will, unless a continuance or
rescheduling has been requested, [
issue a default order].
(3) A default order will be based on the record and best evidence available at the time of the order.
R986-100-131. Setting Aside A Default and/or Reopening the Hearing After the Hearing Has Been Concluded.
(1) Any party who fails to participate personally or by authorized representative as defined in R986-100-130 may request that the default order be set aside and a hearing or a new hearing be scheduled. If a party failed to participate in a hearing but no decision has yet been issued, the party may request that the hearing be reopened.
(2) The request must be in writing, must set forth the reason for the request and must be mailed, faxed or delivered to the ALJ or presiding officer who issued the default order within ten days of the issuance of the default . If the request is made after the expiration of the ten-day time limit, the party requesting reopening must show good cause for not making the request within ten days.
(3) The ALJ has the discretion to schedule a hearing to determine if a party requesting that a default order be set aside or a reopening satisfied the requirements of this rule or may grant or deny the request on the basis of the record in the case.
(4) If a presiding officer issued the default , the officer shall forward the request to the Division of Adjudication. The request will be assigned to an ALJ who will then determine if the party requesting that the default be set aside or that the hearing be reopened has satisfied the requirements of this rule.
(5) The ALJ may, on his or her own motion, reschedule, continue or reopen a case if it appears necessary to take continuing jurisdiction based on a mistake as to facts or if the denial of a hearing would be an affront to fairness. A presiding officer may, on his or her own motion, set aside a default on the same grounds.
(6) If a request to set aside the default or a request for reopening is not granted, the ALJ will issue a decision denying the request to reopen. A copy of the decision will be given or mailed to each party, with a clear statement of the right of appeal or judicial review. A defaulted party may appeal a denial of a request to set aside a default by following the procedure in R986-100-135. The appeal can only contest the denial of the request to set aside the default and not the underlying merits of the case. If the default is set aside on appeal, the Executive Director or designee may rule on the merits or remand the case to an ALJ for a ruling on the merits on an additional hearing if necessary.
R986-100-132. What Constitutes Grounds to Set Aside a Default.
(1) A request to reopen or set aside for failure to participate:
(a) will be granted if the party was prevented from participating and/or appearing at the hearing due to circumstances beyond the party's control;
(b) may be granted upon such terms as are just for any of the following reasons: mistake, inadvertence, surprise, excusable neglect or any other reason justifying relief from the operation of the decision. The determination of what sorts of neglect will be considered excusable is an equitable one, taking into account all of the relevant circumstances including:
(i) the danger that the party not requesting reopening will be harmed by reopening,
(ii) the length of the delay caused by the party's failure to participate including the length of time to request reopening,
(iii) the reason for the request including whether it was within the reasonable control of the party requesting reopening,
(iv) whether the party requesting reopening acted in good faith, and
(v) whether the party was represented by another at the time of the hearing. Because they are required to know and understand Department rules, attorneys and professional representatives are held to a higher standard, and
(vi) whether based on the evidence of record and the parties arguments or statements, setting aside the default and taking additional evidence might effect the outcome of the case.
(2) Requests to reopen or set aside are remedial in nature and thus must be liberally construed in favor of providing parties with an opportunity to be heard and present their case. Any doubt must be resolved in favor of granting reopening.
R986-100-133. Canceling an Appeal and Hearing.
When a client notifies the Division of
Adjudication or the ALJ that the client wants to cancel the hearing
and not proceed with the appeal, a decision dismissing the appeal
will be issued. This decision will have the effect of upholding the
Department decision. The client will have [
30] days in which to reinstate the appeal by filing a
written request for reinstatement with the Division of
R986-100-135. Further Appeal From the Decision of the ALJ or Presiding Officer.
Either party has the option of appealing the decision of the ALJ or presiding officer to either the Executive Director or person designated by the Executive Director or to the District Court. The appeal must be filed, in writing, within 30 days of the issuance of the decision of the ALJ or presiding officer.
KEY: employment support procedures
Date of Enactment or Last Substantive Amendment: [
April 11,] 2011
Notice of Continuation: September 8, 2010
Authorizing, and Implemented or Interpreted Law: 35A-3-101 et seq.; 35A-3-301 et seq.; 35A-3-401 et seq.
The Portable Document Format (PDF) version of the Bulletin is the official version. The PDF version of this issue is available at https://rules.utah.gov/publicat/bull-pdf/2011/b20110701.pdf. The HTML edition of the Bulletin is a convenience copy. Any discrepancy between the PDF version and HTML version is resolved in favor of the PDF version.
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For questions regarding the content or application of this rule, please contact Suzan Pixton at the above address, by phone at 801-526-9645, by FAX at 801-526-9211, or by Internet E-mail at firstname.lastname@example.org.