Section 1240-05-04-.01 - NOTICE(1) Notice of Hearing. In every contested case, a notice of hearing shall be issued by the Department that shall comply with T.C.A. § 4-5-307(b) and shall be served as provided in 1240-5-4-.01(4) of these rules.(2) The hearing shall be conducted at a reasonable time, date, and place after adequate written notice has been given to the appellant. (a) For contested cases in the Families First, Food Stamp, TennCare Medicaid and TennCare Standard programs, adequate written notice shall be sent at a minimum ten (10) days in advance of the date of the hearing.(b) The notice of hearing in Child and Adult Care Food Program appeals, for actions that are subject to administrative review, is governed under 7 C.F.R. § 226.6(k)(5) and State Rule 1240-5-8-.01(9), and adequate written notice shall be sent at a minimum ten (10) days in advance of the date of the hearing.(c) The notice of hearing in Summer Food Service Program appeals is governed under 7 C.F.R. § 225.13 and State Rule 1240-5-8-.01(8) and adequate written notice shall be sent at a minimum five (5) days in advance of the date of the hearing.(d) For Child Support appeals adequate written notice shall be sent at a minimum fifteen (15) days in advance of the date of the hearing.(e) For Vocational Rehabilitation appeals adequate written notice shall be sent at a minimum fifteen (15) days in advance of the date of the hearing.(f) For Blind Services appeals adequate written notice shall be sent at a minimum fifteen (15) days in advance of the date of the hearing.(g) The hearing on the petition requesting a hearing on the notice to deny, revoke or restrict an adult day care center license shall be held within sixty (60) days of the receipt of the petition. The notice of the hearing date shall be sent at a minimum fifteen (15) days in advance of the date of the hearing.(h) For all other appeals not otherwise specified herein, adequate written notice shall be sent at a minimum fifteen (15) days in advance of the date of the hearing.(i) The notice periods set forth in this paragraph may be extended for any individual or all programs by direction of the Commissioner's designee in his/her sole discretion except where otherwise limited by statute or federal regulation.(3) The notice shall include: (a) The date, time, place, and nature of the hearing with instructions to the appellant to notify the Appeals and Hearings Division if he/she is unable to meet the appointment.(b) A statement of the legal authority and jurisdiction under which the hearing is to be held, including a reference to the particular sections of the statutes and rules involved.(c) A short and plain statement of the matters asserted. The notice will define the issues and refer to detailed statements of the matters involved, if available.(d) Information about hearing procedures.(e) The appellant's option to present his/her case or be represented by a lawyer or another authorized person.(f) The appellant's right to inspect the files of the agency with respect to the matter under appeal and to copy from the file.(g) The appellant's right to present written evidence and testimony and to bring witnesses and members of his/her family to the hearing.(h) The process by which an appellant may petition for reconsideration of an initial or final order, if applicable.(i) The process by which an appellant may appeal an initial order, if applicable.(j) The appellant's right to judicial review, if he/she is dissatisfied with the final order entered on his/her appeal.(k) Supplemented Notice. In the event it is impractical or impossible to include in one document every element required for notice, elements such as time and place of hearing may be supplemented in later written notice.
(4) Service of Notice of Hearing. (a) In any case in which an appellant in TennCare Standard or TennCare Medicaid, Families First or Food Stamp has requested a hearing from the Department, a copy of the notice of hearing shall be delivered to the party by certified mail, postage prepaid, or by personal service. Service of notice of the hearing for other programs administered by the Department shall be by any method permitted or required by law or program regulations governing those programs.(b) Service of the notice of hearing for TennCare Standard or TennCare Medicaid cases shall be made at the address required to be kept current by the applicant/recipient with the Department by T.C.A. §§ 71-5-106(l) and 110(c)(1), or such other address as the Department of Human Services may have for applicant/recipients of Families First or Food Stamp or other programs, and at the address provided with the request for hearing, if different from the address on file with the Department. However, the Department shall use the best address known to it, whether provided directly by the applicant/recipient or obtained indirectly.(c) In the event of a motion for default where there is no indication of actual service on a party, the following circumstances will be taken into account in determining whether to grant the default:1. Whether any other attempts at actual service were made;2. Whether and to what extent actual service is practicable in any given case;3. What attempts were made to make contact with the party by telephone, by regular mail, or otherwise; and4. Whether the Department has actual knowledge or reason to know that the party may be located elsewhere than the address to which the notice was mailed.(5) Filing of Documents. When a contested case is commenced, if the matter is being heard by the Administrative Procedures Division, the Department shall provide the Administrative Procedures Division with all the papers that make up the notice of hearing and with all pleadings, motions, and objections, formal or otherwise, that have been provided to or generated by the Department concerning that particular case. Legible copies may be filed in lieu of originals.(6) Answer. The party may respond to the matters set out in the notice or other original pleading by filing a written answer with the Department in which the party may: (a) Object to the notice upon the ground that it does not state acts or omissions upon which the Department may proceed;(b) Object on the basis of lack of jurisdiction over the subject matter;(c) Object on the basis of lack of jurisdiction over the person;(d) Object on the basis of insufficiency of the notice;(e) Object on the basis of insufficiency of service of the notice;(f) Object on the basis of failure to join an indispensable party;(g) Generally deny all the allegations contained in the notice or state that he/she is without knowledge as to each and every allegation, both of which shall be deemed a general denial of all charges;(h) Admit in part or deny in part allegations in the notice and may elaborate on or explain relevant issues of fact in a manner that will simplify the ultimate issues; and(i) Assert any available defense.(7) Amendment to Notice.(a) The notice or other original pleading may be amended within two (2) weeks from service of the notice and before an answer is filed, unless the respondent shows that undue prejudice will result from this amendment. Otherwise the notice or other original pleading may only be amended by written consent of the respondent or by leave of the hearing official or Commissioner's designee, and leave shall be freely given when justice so requires.(b) No amendment to the notice may introduce a new statutory or regulatory basis for denial or termination of enrollment without original service and running of times applicable to service of the original notice.(c) The hearing official shall not grant a continuance to amend the notice or original pleading if such would prejudice a respondent's right to a hearing and Initial Order within any mandatory time frames.(8) Amendments to Conform to the Evidence.(a) When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time; but failure to amend for this reason does not affect the result of the determination of these issues.(b) If evidence is objected to at the hearing on the ground that it is not within the issues in the pleadings, the hearing official may allow the pleadings to be amended unless the objecting party shows that the admission of such evidence would prejudice his defense. The hearing official may grant a continuance to enable the objecting party to have reasonable notice of the amendments. However, when the individual is not represented by counsel, the burden cannot be put on such individual to object to the State's trying of cases without proof and legal authorities set out in the pleadings, and the hearing official shall rule on whether to allow additional evidence and the need for continuances to enable the respondent further time to address the new grounds.Tenn. Comp. R. & Regs. 1240-05-04-.01
Original rule filed January 19, 1977; effective February 18, 1977. Amendment filed December 17, 1982; effective March 16, 1983. Amendment filed February 26, 2007; effective May 12, 2007.Authority: T.C.A. §§ 4-5-202; 4-5-301, 36-5-701 et seq., 36-5-1001 - 1003, 71-1-105(12), 71-2-401 et seq., 71-3-154, 71-3-509, 71-4-508, 71-4-610, 71-5-106, 71-5-110 and 71-5-305; 7 U.S.C. §§ 2014, 2015, 2020(e)(10); 20 U.S.C. § 107b(6) and 107d-1; 29 U.S.C. § 722(a)(5) and (c)(2); 42 U.S.C. §§ 601 et seq.; 42 U.S.C. §§ 651 et seq.; 42 U.S.C. § 1397; 42 U.S.C. §§ 1396 et seq.; 42 U.S.C. §§ 1761 and 1766; 42 U.S.C. § 6851; 42 U.S.C. § 8624; 42 U.S.C. § 9901; 7 C.F.R. § 225.13(b)(6) and 226.6(k)(5)(vi) and 226.6(l)(2); 7 C.F.R. § 273.15(l); 10 C.F.R. § 440.1; 34 C.F.R. § 361.57(e); 34 C.F.R. §§ 395 et seq.; 42 C.F.R. § 431.240; 45 C.F.R. § 205.10(a)(8); and 45 C.F.R. § 400.54.