§ 108A-79. Appeals.
Article 4.
Public Assistance andSocial Services Appeals and Access to Records.
§ 108A‑79. Appeals.
(a) A public assistanceapplicant or recipient shall have a right to appeal the decision of the countyboard of social services, county department of social services, or the board ofcounty commissioners granting, denying, terminating, or modifying assistance,or the failure of the county board of social services or county department ofsocial services to act within a reasonable time under the rules and regulationsof the Social Services Commission or the Department. Each applicant orrecipient shall be notified in writing of his right to appeal upon denial ofhis application for assistance and at the time of any subsequent action on hiscase.
(b) In cases involvingtermination or modification of assistance, no action shall become effectiveuntil 10 workdays after notice of this action and of the right to appeal ismailed or delivered by hand to the recipient; provided, however, termination ormodification of assistance may be effective immediately upon the mailing ordelivery of notice in the following circumstances:
(1) When themodification is beneficial to the recipient; or
(2) When federalregulations permit immediate termination or modification upon mailing ordelivery of notice and the Social Services Commission or the Department ofHealth and Human Services promulgates regulations adopting said federal law orregulations. When federal and State regulations permit immediate termination ormodification, the recipient shall have no right to continued assistance at thepresent level pending a hearing, as would otherwise be provided by subsection(d) of this section.
(c) The notice ofaction and the right to appeal shall comply with all applicable federal and Statelaw and regulations; provided, such notice shall, at a minimum contain a clearstatement of:
(1) The action which wasor is to be taken;
(2) The reasons forwhich this action was or is to be taken;
(3) The regulationssupporting this action;
(4) The applicant's orrecipient's right to both a local and State level hearing, or to a State levelhearing in the case of the food and nutrition services program, on the decisionto take this action and the method for obtaining these hearings;
(5) The right to berepresented at the hearings by a personal representative, including an attorneyobtained at the applicant's or recipient's expense;
(6) In cases involvingtermination or modification of assistance, the recipient's right upon timelyrequest to continue receiving assistance at the present level pending an appealhearing and decision on that hearing.
An applicant or recipient maygive notice of appeal by written or oral statement to the county department ofsocial services, which shall record such notice by completing a form developedby the Department.
Such notice of appeal must begiven within 60 days from the date of the action, or 90 days from the date ofnotification in the case of the food and nutrition services program. Failure togive timely notice of appeal constitutes a waiver of the right to a hearingexcept that, for good cause shown, the county department of social services maypermit an appeal notwithstanding the waiver. The waiver shall not affect theright to reapply for benefits.
(d) If there is suchtimely appeal in cases not involving disability, in the first instance thehearing shall consist of a local appeal hearing before the county director or adesignated representative of the county director, provided whoever hears thelocal appeal shall not have been involved directly in the initial decisiongiving rise to the appeal. If there is such timely appeal in cases involvingdisability, the county director or a designated representative of the countydirector shall within five days of the request for an appeal forward therequest to the Department of Health and Human Services, and the Departmentshall designate a hearing officer who shall promptly hold a hearing in thecounty according to the provisions of subsections (i) and (j) of this section.In cases involving termination or modification of assistance (other than casesof immediate termination or modification of assistance pursuant to subsection(b) (2) of this section), the recipient shall continue to receive assistance atthe present level pending the decision at the initial hearing, whether that bethe local appeal hearing decision or, in cases involving questions ofdisability, the Department of Health and Human Services hearing decision,provided that in order to continue receiving assistance pending the initialhearing decision the recipient must request a hearing on or before theeffective date of the termination or modification of assistance.
(e) The local appealhearing shall be held not more than five days after the request for it isreceived. The recipient may, for good cause shown as defined by rule orregulation of the Social Services Commission or the Department, petition thecounty department of social services, in writing, for a delay, but in no eventshall the local appeal hearing be held more than 15 days after the receipt ofthe request for hearing. At the local appeal hearing:
(1) The appellant andthe county department may be represented by personal representatives, includingattorneys, obtained at their expense.
(2) The appellant or hispersonal representative and the county department shall present such swornevidence and law or regulations as bear upon the case. The hearing need not berecorded or transcribed, but the director or his representative shall summarizein writing the substance of the hearing.
(3) The appellant or hispersonal representative and the county department may cross‑examinewitnesses and present closing arguments summarizing their views of the case andthe law.
(4) Prior to and duringthe hearing, the appellant or his personal representative shall have adequateopportunity to examine the contents of his case file for the matter pendingtogether with those portions of other public assistance or social services casefiles which pertain to the appeal, and all documents and records which thecounty department of social services intends to use at the hearing. Thoseportions of the public assistance or social services case file which do notpertain to the appeal or which are required by federal statutes or regulationsor by State statutes or regulations to be held confidential shall not bereleased to the appellant or his personal representative. In cases where theappellant has been denied access to the public assistance or social servicescase file the hearing officer shall certify as part of the official record thatthe hearing officer has examined the case files and that no portion of thosefiles pertain to the appeal. Such certification may be subject to judicialreview as provided in subsection (k) of this section. Nothing in this sectionis intended to restrict an applicant or recipient access to information if thataccess is allowed by rules and regulations promulgated pursuant to G.S. 108A‑80.
(f) The director orhis designated representative shall make the decision based upon the evidencepresented at the hearing and all applicable regulations, and shall prepare awritten statement of his decision citing the regulations and evidence tosupport it. This written statement of the decision will be served by certifiedmail on the appellant within five days of the local appeal hearing. If thedecision terminating or modifying the appellant's benefits is affirmed, theassistance shall be terminated or modified, not earlier than the date thedecision is mailed, and any assistance received during the time of the appealis subject to recovery.
(g) If the appellant isdissatisfied with the decision of the local appeal hearing, he may within 15days of the mailing notification of the decision take a further appeal to theDepartment. However, assistance may not be received pending this furtherappeal. Failure to give timely notice of further appeal constitutes a waiver ofthe right to a hearing before an official of the Department except that, forgood cause shown, the Department may issue an order permitting a review of thelocal appeal hearing notwithstanding the waiver. The waiver shall not affectthe right to reapply for benefits.
(h) Subsections (d)‑(g)of this section shall not apply to the food and nutrition services program. Thefirst appeal for an electronic food and nutrition benefit recipient or hisrepresentative shall be to the Department. Pending hearing, the recipient'sassistance shall be continued at the present level upon timely request.
(i) If there is anappeal from the local appeal hearing decision, or from an electronic food andnutrition benefit recipient or his representative where there is no localhearing, or if there is an appeal of a case involving questions of disabilitythe county director shall notify the Department according to its rules andregulations. The Department shall designate a hearing officer who shallpromptly hold a de novo administrative hearing in the county after givingreasonable notice of the time and place of such hearing to the appellant andthe county department of social services. Such hearing shall be conductedaccording to applicable federal law and regulations and Article 3, Chapter150B, of the General Statutes of North Carolina; provided the Department shalladopt rules and regulations to ensure the following:
(1) Prior to and duringthe hearing, the appellant or his personal representative shall have adequateopportunity to examine his case file and all documents and records which thecounty department of social services intends to use at the hearing togetherwith those portions of other public assistance or social services case fileswhich pertain to the appeal. Those portions of the public assistance or socialservices case files which do not pertain to the appeal or which are required byfederal statutes or regulations or by State statutes or regulations to be heldconfidential shall not be released to the appellant or his personalrepresentative. In cases where the appellant has been denied access to portionsof the public assistance or social services case file, the hearing officershall certify as part of the official record that the hearing officer hasexamined the case files and that no portion of those files pertain to theappeal. Such certification may be subject to judicial review as provided insubsection (k) of this section. Nothing in this section is intended to restrictan applicant or recipient access to information if that access is allowed byrules or regulations promulgated pursuant to G.S. 108A‑80.
(2) At the appealhearing, the appellant and personnel of the county department of socialservices may present such sworn evidence, law and regulations as bear upon thecase.
(3) The appellant andcounty department shall have the right to be represented by the person of hischoice, including an attorney obtained at his own expense.
(4) The appellant andcounty department shall have the right to cross‑examine the other partyas well as make a closing argument summarizing his view of the case and thelaw.
(5) The appeal hearingshall be recorded; however, no transcript will be prepared unless a petitionfor judicial review is filed pursuant to subsection (k) herein, in which case,the transcript will be made a part of the official record. In the absence of thefiling of a petition for a judicial review, the recording of the appeal hearingmay be erased or otherwise destroyed 180 days after the final decision ismailed.
(6) Notwithstanding G.S.150B‑28 or any other provision of State law, discovery shall be no moreextensive or formal than that required by federal law and regulationsapplicable to such hearings.
(j) After theadministrative hearing, the hearing officer shall prepare a proposal fordecision, citing pertinent law, regulations, and evidence, which shall beserved upon the appellant and the county department of social services or theirpersonal representatives. The appellant and the county department of socialservices shall have the opportunity to present oral and written arguments inopposition to or in support of the proposal for decision to the designatedofficial of the Department who is to make the final decision. The finaldecision shall be based on, conform to, and set forth in detail the relevantevidence, pertinent State and federal law and regulations, and mattersofficially noticed. The decision shall be rendered not more than 90 days, or 45days in the case of the food and nutrition services program, from the date ofrequest for the hearing, unless the hearing was delayed at the request of theappellant. If the hearing was delayed at the appellant's request, the decisionmay only be delayed for the length of time the appellant requested a delay. Thefinal decision shall be served upon the appellant and upon the countydepartment of social services by certified mail, with a copy furnished toeither party's attorney of record. In the absence of a petition for judicialreview filed pursuant to subsection (k) herein, the final decision shall bebinding upon the appellant, the county department of social services, thecounty board of social services, and the board of county commissioners.
(k) Any applicant orrecipient who is dissatisfied with the final decision of the Department mayfile, within 30 days of the receipt of notice of such decision, a petition forjudicial review in superior court of the county from which the case arose.Failure to file a petition within the time stated shall operate as a waiver ofthe right of such party to review, except that, for good cause shown, a judgeof the superior court resident in the district or holding court in the countyfrom which the case arose may issue an order permitting a review of the agencydecision under this Chapter notwithstanding such waiver. The hearing shall beconducted according to the provisions of Article 4, Chapter 150B, of the NorthCarolina General Statutes. The court shall, on request, examine the evidenceexcluded at the hearing under G.S. 108A‑79(e)(4) or G.S. 108A‑79(i)(1)and if the evidence was improperly excluded, the court shall consider it.Notwithstanding the foregoing provisions, the court may take testimony andexamine into the facts of the case, including excluded evidence, to determinewhether the final decision is in error under federal and State law, and underthe rules and regulations of the Social Services Commission or the Departmentof Health and Human Services. Furthermore, the court shall set the matter forhearing within 15 days from the filing of the record under G.S. 150B‑47and after reasonable written notice to the Department of Health and HumanServices and the applicant or recipient. Nothing in this subsection shall beconstrued to abrogate any rights that the county may have under Article 4 ofChapter 150B.
(l) In the event ofconflict between federal law or regulations and State law or regulations, thefederal law or regulations shall control. (1937, c. 288, ss. 18, 48; 1939, c. 395, s. 1; 1957,c. 100, s. 1; 1969, c. 546, s. 1; cc. 735, 754; 1973, c. 476, s. 138; 1977, 2ndSess., c. 1219, ss. 14‑18; 1979, c. 691; 1981, c. 275, s. 1; c. 419, ss.1‑3; c. 420, ss. 1‑3; 1987, c. 599, ss. 1‑3; c. 827, s. 1;1997‑443, s. 11A.118(a); 2007‑97, s. 13.)