Administrative Code

Virginia Administrative Code
9/21/2021

Article 3. Resource Eligibility Determinations for Institutionalized Spouses

12VAC30-110-50. Right to representation.

Article 3
Representation

An appellant shall have the full right to representation by an attorney or agent at all stages of appeal.

Statutory Authority

§ 32.1-325 of the Code of Virginia.

Historical Notes

Derived from VR460-04-8.7 § 1.5, eff. October 1, 1993.

12VAC30-110-60. Designation of representative.

A. Agents. An agent must be designated in a written statement which is signed by the appellant. If the appellant is physically or mentally unable to sign a written statement, the division may allow a family member or other person acting on appellant's behalf to represent the appellant.

B. Attorneys. If the agent is an attorney or a paralegal working under the supervision of an attorney, a signed statement by such attorney or paralegal that he is authorized to represent the appellant prepared on the attorney's letterhead, shall be accepted as a designation of representation.

C. Substitution. A member of the same law firm as a designated representative shall have the same rights as the designated representative.

D. Revocation. An appellant may revoke representation by another person at any time. The revocation is effective when the department receives written notice from the appellant.

Statutory Authority

§ 32.1-325 of the Code of Virginia.

Historical Notes

Derived from VR460-04-8.7 § 1.6, eff. October 1, 1993.

12VAC30-110-220. Evidentiary hearings.

Article 3
Hearing

A hearing officer shall review all agency determinations which are properly appealed; conduct informal, fact-gathering hearings; evaluate evidence presented; and issue a written final decision sustaining, reversing, or remanding each case to the agency for further proceedings.

Statutory Authority

§ 32.1-325 of the Code of Virginia.

Historical Notes

Derived from VR460-04-8.7 § 2.10, eff. October 1, 1993.

12VAC30-110-230. Scheduling and rescheduling.

A. To the extent possible, hearings will be scheduled at the appellant's convenience, with consideration of the travel distance required.

B. A hearing shall be rescheduled at the claimant's request no more than twice unless compelling reasons exist.

Statutory Authority

§ 32.1-325 of the Code of Virginia.

Historical Notes

Derived from VR460-04-8.7 § 2.11, eff. October 1, 1993; amended, Virginia Register Volume 11, Issue 17, eff. June 15, 1995.

12VAC30-110-240. (Repealed.)

Historical Notes

Derived from VR460-04-8.7 § 2.11.1, eff. October 1, 1993; repealed, Virginia Register Volume 11, Issue 17, eff. June 15, 1995.

12VAC30-110-250. Notification.

When a hearing is scheduled, the appellant and his representative shall be notified in writing of its time and place.

Statutory Authority

§ 32.1-325 of the Code of Virginia.

Historical Notes

Derived from VR460-04-8.7 § 2.12, eff. October 1, 1993.

12VAC30-110-260. Postponement.

A hearing may be postponed for good cause shown. No postponement will be granted beyond 30 days after the date of the Request for Appeal was filed unless the appellant or his representative waives in writing the 90-day deadline for the final decision.

Statutory Authority

§ 32.1-325 of the Code of Virginia.

Historical Notes

Derived from VR460-04-8.7 § 2.13, eff. October 1, 1993.

12VAC30-110-270. Location.

The hearing location shall be determined by the division. If for medical reasons the appellant is unable to travel, the hearing may be conducted at his residence.

The agency may respond to a series of individual requests for hearings by conducting a single group hearing:

1. Only in cases in which the sole issue involved is one of federal or state law or policy; and

2. Each person must be permitted to present his own case or be represented by his authorized representative.

Statutory Authority

§ 32.1-325 of the Code of Virginia.

Historical Notes

Derived from VR460-04-8.7 § 2.14, eff. October 1, 1993.

12VAC30-110-280. Client access to records.

Upon the request of the appellant or his representative, at a reasonable time before the date of the hearing, as well as during the hearing, the appellant and his representative may examine the content of appellant's case file and all documents and records the agency will rely on at the hearing.

Statutory Authority

§ 32.1-325 of the Code of Virginia.

Historical Notes

Derived from VR460-04-8.7 § 2.15, eff. October 1, 1993.

12VAC30-110-285. Appeals Division access to agency records.

A hearing officer shall have access to agency information necessary to issue a proper hearing decision that is sound and legally supportable, including information concerning state policies and regulations.

Statutory Authority

§ 32.1-325 f the Code of Virginia; 42 USC § 1396 et seq.

Historical Notes

Derived from Virginia Register Volume 31, Issue 16, eff. May 6, 2015.

12VAC30-110-290. Subpoenas.

Appellants who require the attendance of witnesses or the production of records, memoranda, papers, and other documents at the hearing may request issuance of a subpoena in writing. The request must be received by the division at least five business days before the hearing is scheduled. Such request must include the witness' name, home and work address, county or city of work and residence, and identify the sheriff's office which will serve the subpoena.

Statutory Authority

§ 32.1-325 of the Code of Virginia.

Historical Notes

Derived from VR460-04-8.7 § 2.16, eff. October 1, 1993.

12VAC30-110-300. Role of the hearing officer.

The hearing officer shall conduct the hearing, decide on questions of evidence, procedure and law, question witnesses, and assure that the hearing remains relevant to the issue or issues being appealed. The hearing officer shall control the conduct of the hearing and decide who may participate in or observe the hearing.

Statutory Authority

§ 32.1-325 of the Code of Virginia.

Historical Notes

Derived from VR460-04-8.7 § 2.17, eff. October 1, 1993; amended, Virginia Register Volume 10, Issue 23, eff. October 1, 1994.

12VAC30-110-310. Informality of hearings.

Hearings shall be conducted in an informal, nonadversarial manner. The appellant or his representative has the right to bring witnesses, establish all pertinent facts and circumstances; present an argument without undue interference, and question or refute the testimony or evidence, including the opportunity to confront and cross-examine adverse witnesses.

Statutory Authority

§ 32.1-325 of the Code of Virginia.

Historical Notes

Derived from VR460-04-8.7 § 2.18, eff. October 1, 1993.

12VAC30-110-320. Evidence.

The rules of evidence shall not strictly apply. All relevant, nonrepetitive evidence may be admitted, but the probative weight of the evidence will be evaluated by the hearing officer.

Statutory Authority

§ 32.1-325 of the Code of Virginia.

Historical Notes

Derived from VR460-04-8.7 § 2.19, eff. October 1, 1993.

12VAC30-110-330. Record of hearing.

All hearings shall be recorded either by court reporter, tape recorders, or whatever other means the agency deems appropriate. All exhibits accepted or rejected shall become part of the hearing record.

Statutory Authority

§ 32.1-325 of the Code of Virginia.

Historical Notes

Derived from VR460-04-8.7 § 2.20, eff. October 1, 1993.

12VAC30-110-340. Oath or affirmation.

All witnesses shall testify under oath which shall be administered by the court reporter or the hearing officer, as delegated by the department's director.

Statutory Authority

§ 32.1-325 of the Code of Virginia.

Historical Notes

Derived from VR460-04-8.7 § 2.21, eff. October 1, 1993.

12VAC30-110-350. Dismissal of Request for Appeal.

A. A Request for Appeal may be dismissed if:

1. The appellant or his representative withdraws the request via any of the methods in 12VAC30-110-130. For telephonic appeal withdrawals, the agency shall record the individual's statement and telephonic signature; or

2. The appellant or his representative fails to appear at the scheduled hearing without good cause and does not reply within 10 days after the hearing officer sends an inquiry as to whether the appellant wishes further action on the appeal.

B. Subsequent to the dismissal, the appellant shall receive the written order of dismissal via regular mail or electronic notification in accordance with the individual's election under 42 CFR 435.918(a).

Statutory Authority

§ 32.1-325 of the Code of Virginia; 42 USC § 1396 et seq.

Historical Notes

Derived from VR460-04-8.7 § 1.11, eff. October 1, 1993; amended, Virginia Register Volume 31, Issue 16, eff. May 6, 2015; Volume 34, Issue 6, eff. December 13, 2017.

12VAC30-110-360. Post-hearing supplementation of the record.

A. Medical assessment. Following a hearing, a hearing officer may order an independent medical assessment as described in 12VAC30-110-200.

B. Additional evidence. The hearing officer may leave the hearing record opened for a specified period of time in order to receive additional evidence or argument from the appellant. If the record indicates that evidence exists which was not presented by either party, with the appellant's permission, the hearing officer may attempt to secure such evidence.

C. Appellant's right to reconvene hearing or comment. If the hearing officer receives additional evidence from a person other than the appellant or his representative, the hearing officer shall send a copy of such evidence to the appellant and his representative and give the appellant the opportunity to comment on such evidence in writing or to reconvene the hearing to respond to such evidence.

D. Any additional evidence received will become a part of the hearing record, but the hearing officer must determine whether or not it will be used in making the decision.

Statutory Authority

§ 32.1-325 of the Code of Virginia.

Historical Notes

Derived from VR460-04-8.7 § 2.23, eff. October 1, 1993.

12VAC30-110-370. Final decision and transmission of the hearing record.

A. After conducting the hearing, reviewing the record, and deciding questions of law, the hearing officer shall issue a written final decision which either sustains or reverses the agency action or remands the case to the agency for further action consistent with his written instructions. The hearing officer's final decision shall be considered as the agency's final administrative action pursuant to 42 CFR, 431.244(f). The final decision shall include:

1. A description of the procedural development of the case;

2. Findings of fact that identify supporting evidence;

3. Conclusions of law that identify supporting regulations and law;

4. Conclusions and reasoning;

5. The specific action to be taken by the agency to implement the decision;

6. The deadline date by which further action must be taken; and

7. A cover letter stating that the hearing officer's decision is final, and stating that the final decision may be appealed directly to circuit court as provided in 12VAC30-110-40.

B. The hearing record shall be forwarded to the appellant and his representative with the final decision.

Statutory Authority

§§ 32.1-324 and 32.1-325 of the Code of Virginia.

Historical Notes

Derived from VR460-04-8.7 § 2.24, eff. October 1, 1993; amended, Virginia Register Volume 10, Issue 23, eff. October 1, 1994; Volume 11, Issue 17, eff. June 15, 1995; Volume 22, Issue 26, eff. November 20, 2006; Volume 25, Issue 14, eff. April 15, 2009.

12VAC30-110-380. (Repealed.)

Historical Notes

Derived from VR460-04-8.7 § 2.25, eff. October 1, 1993; repealed, Virginia Register Volume 25, Issue 14, eff. April 15, 2009.

12VAC30-110-390. (Repealed.)

Historical Notes

Derived from VR460-04-8.7 §§ 3.1 through 3.22 eff. October 1, 1993; repealed, Virginia Register Volume 11, Issue 17, eff. June 15, 1995.

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