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The Vermont Statutes Online



Title

03

:
Executive






Chapter

053

:
HUMAN SERVICES






Subchapter

004
:
DEPARTMENTS, DIVISIONS, AND BOARDS










 

§

3091. Hearings

(a) An applicant

for or a recipient of assistance, benefits, or social services from the

Department for Children and Families, the Department of Vermont Health Access,

the Department of Disabilities, Aging, and Independent Living, or the

Department of Mental Health, or an applicant for a license from one of those

departments, or a licensee may file a request for a fair hearing with the Human

Services Board. An opportunity for a fair hearing will be granted to any

individual requesting a hearing because his or her claim for assistance,

benefits, or services is denied, or is not acted upon with reasonable

promptness; or because the individual is aggrieved by any other agency action

affecting his or her receipt of assistance, benefits, or services, or license

or license application; or because the individual is aggrieved by Agency policy

as it affects his or her situation.

(b) The hearing

shall be conducted by the Board or by a hearing officer appointed by the Board.

The chairman of the Board may compel, by subpoena, the attendance and testimony

of witnesses and the production of books and records. All witnesses shall be

examined under oath. The Board shall adopt rules with reference to appeals,

which shall not be inconsistent with this chapter. The rules shall provide for

reasonable notice to parties, and an opportunity to be heard and be represented

by counsel.

(c) The Board or

the hearing officer shall issue written findings of fact. If the hearing is

conducted by a hearing officer the hearing officer's findings shall be reported

to the Board, and the Board shall approve the findings and adopt them as the

findings of the Board unless good cause is shown for disapproving them. Whether

the findings are made by the Board, or by a hearing officer and adopted by the

Board, the Board shall enter its order based on the findings.

(d) After the

fair hearing the Board may affirm, modify or reverse decisions of the Agency;

it may determine whether an alleged delay was justified; and it may make orders

consistent with this title requiring the agency to provide appropriate relief

including retroactive and prospective benefits. The Board shall consider, and

shall have the authority to reverse or modify, decisions of the Agency based on

rules which the Board determines to be in conflict with State or federal law.

The Board shall not reverse or modify agency decisions which are determined to

be in compliance with applicable law, even though the board may disagree with

the results effected by those decisions.

(e) The Board

shall give written notice of its decision to the person applying for fair

hearing and to the Agency. Unless a continuance is requested or consented to by

an aggrieved person, decisions and orders concerning Temporary Assistance to

Needy Families (TANF) under V.S.A. 33 chapter 11, TANF-Emergency Assistance

(TANF-EA) under Title IV of the Social Security Act and medical assistance

(Medicaid) under V.S.A. 33 chapter 19 shall be issued by the Board within 75

days of the request for hearing.

(f) The Agency

or the appellant may appeal from decisions of the Board to the Supreme Court

under Rule 13 of the Vermont Rules of Appellate Procedure. Pending the final

determination of any appeal the terms of the order involved shall be given

effect by the agency except insofar as they relate to retroactive benefits.

(g) A party to

an order or decree of the Board or the Board itself, or both, may petition the

Supreme Court for relief against any disobedience of or noncompliance with the

order or decree. In the proceedings and upon such notice thereof to the parties

as it shall direct, the Supreme Court shall hear and consider the petition and

make such order and decree in the premises by way of writ of mandamus, writ of

prohibition, injunction, or otherwise, concerning the enforcement of the order

and decree of the Board as shall be appropriate.

(h)(1)

Notwithstanding subsections (d) and (f) of this section, the Secretary shall

review all Board decisions and orders concerning TANF, TANF-EA, office of child

support cases, and Medicaid. The secretary shall:

(A) adopt a

Board decision or order, except that the Secretary may reverse or modify a

Board decision or order if:

(i) the Board's

findings of fact lack any support in the record; or

(ii) the

decision or order implicates the validity or applicability of any Agency policy

or rule.

(B) issue a

written decision setting forth the legal, factual or policy basis for reversing

or modifying a Board decision or order.

(2)

Notwithstanding subsections (d) and (f) of this section, a Board decision and

order concerning TANF, TANF-EA, Office of Child Support, or Medicaid shall

become the final and binding decision of the Agency upon its approval by the

Secretary. The Secretary shall either approve, modify or reverse the Board's decision

and order within 15 days of the date of the Board's decision and order. If the

Secretary fails to issue a written decision within 15 days as required by this

subdivision, the Board's decision and order shall be deemed to have been

approved by the Secretary.

(3)

Notwithstanding subsection (f) of this section, only the claimant may appeal a

decision of the Secretary to the Supreme Court. Such appeals shall be pursuant

to Rule 13 of the Vermont Rules of Appellate Procedure. The Supreme Court may

stay the Secretary's decision upon the claimant's showing of a fair ground for

litigation on the merits. The Supreme Court shall not stay the Secretary's

order insofar as it relates to a denial of retroactive benefits. (Added 1973,

No. 101, § 5; amended 1989, No. 181 (Adj. Sess.); 1989, No. 219 (Adj. Sess.), §

9(a); 1993, No. 105, § 1; 1999, No. 147 (Adj. Sess.), § 4; 2005, No. 174 (Adj.

Sess.), § 8; 2007, No. 15, § 6; 2007, No. 172 (Adj. Sess.), § 3; 2009, No. 156

(Adj. Sess.), § I.9.)