Notification Requirements and Fair Hearing Rights-EA

The rights and procedures governing the informal hearing procedure, as specified in 801 CMR 1.02: Informal Rules, apply to the EA program, except to the extent that they are inconsistent with 760 CMR 67.09, in which case the provisions of 760 CMR 67.09 apply. (1) Notification Requirements. The Department shall send written notification of approval, denial, noncompliance and/or termination of EA benefits to the EA household. Any required communications with the EA household during the application process, after approval, but before placement, or after denial, shall be sent to the last address of record reported by the applicant during the application process, unless otherwise notified in writing by the EA household. (a) When the Department determines that it is necessary to terminate EA temporary emergency shelter benefits, the Department shall send the EA household written notice of termination on a form prescribed by the Department. This notice shall be sent to the address of record. Unless otherwise notified in writing by the EA household, the Department will use the last shelter address as the address of record. Any required communications with the EA household after it has left EA temporary emergency shelter, whether after receipt of a notice of termination or otherwise, shall continue to be sent to the last shelter address, unless otherwise notified in writing by the EA household. This notice must be sent at least ten calendar days in advance of the proposed termination date. This notice shall specify: 1. the reason(s) why the EA household is being terminated; and 2. the date the shelter benefits will be terminated. (b) When the EA household is being transferred from one temporary emergency shelter to another temporary emergency shelter, the Department will give or send the EA household a written notification of the transfer. Changing the placement of an EA household from one temporary emergency shelter to another temporary emergency shelter shall be considered a continuance of EA benefits. This transfer notice shall only be given at the time of the change of placement. This notice does not have to meet the requirements of 106 CMR 343.140: Time Limits. The written notice issued pursuant to 760 CMR 67.09 shall be adequate as defined in 106 CMR 343.200: Adequate Notice Requirements(A). (c) When the Department determines that the EA household has a first or second instance of noncompliance with the requirements of maintaining temporary emergency shelter as described in 760 CMR 67.06(5)(a), the Department shall send a written notice of the noncompliance to the EA household. This noncompliance notice shall specify: 1. the reason(s) why the EA household is determined to be in noncompliance; 2. that a third instance of noncompliance will result in the termination of the temporary emergency shelter benefits in accordance with 760 CMR 67.06(6); and that the EA household may request a face-to-face interview with a Department worker to discuss its noncompliance. This notice does not have to meet the requirements of 106 CMR 343.140: Time Limits. 4. The written notice issued pursuant to 760 CMR 67.09 shall be adequate as defined in 106 CMR 343.200: Adequate Notice Requirements(A). (d) When the Department places an EA household in a temporary emergency shelter placement or transfers an EA household from one temporary emergency shelter placement to another temporary emergency shelter, the Department shall provide notice of the EA household's right to appeal: 1. whether the Department made reasonable efforts to locate temporary emergency shelter that will accommodate the physical composition of the entire household, i.e., the size of the household and the age and gender of the household members pursuant to 760 CMR 67.06(3)(a); and 2. whether the Department made every effort to ensure that a child continues attending school in the community he or she lived prior to the EA shelter placement, unless requested otherwise. (2) Right to a Fair Hearing. (a) An EA applicant or recipient may appeal: 1. the failure of the Department to provide any temporary emergency shelter benefits available under 760 CMR 67.06; 2. a. the termination of temporary emergency shelter benefits pursuant to 760 CMR 67.06(6). The EA household has the right to appeal the termination based on his or her assertion that the event(s) specified by the Department as the reason(s) for the termination has not occurred or otherwise does not warrant a noncompliance notice under applicable EA rules, regulations or policy. If the termination is based on a third noncompliance pursuant to 760 CMR 67.06(6)(a)3., during the termination appeal, the household may contest the validity of any prior noncompliance notice unless the prior noncompliance notice was previously appealed and upheld. With regard to a prior noncompliance notice that was not timely appealed within 21 days of the notice, the EA household will have the burden of proving by a preponderance of the evidence why the prior noncompliance notice(s) should be overturned; b. Only one appeal pursuant to 760 CMR 67.06(6) may be requested by the EA household. The EA household may remain in the placement pending the fair hearing decision only with the permission of the temporary emergency shelter; 3. whether the Department made reasonable efforts to locate temporary emergency shelter that would accommodate the physical composition of the entire household, i.e., the size of the household and the age and gender of the household members pursuant to 760 CMR 67.06(3)(a); a finding of the first or second instance of noncompliance made pursuant to 760 CMR 67.06(5)(a) based only on the EA household's assertion that the events specified by the Department as the reasons(s) for the noncompliance did not occur or otherwise do not warrant a noncompliance uner applicable EA rules, regulations or policy; or whether the Department has made every effort to ensure that a child continues attending school in the community he or she lived prior to the EA shelter placement, unless requested otherwise. (b) 1. The appeal request must be received by the Hearings Manager within 21 calendar days of the date of the notice of the Department's proposed action, findings of noncompliance, or placement. There shall be no waiver of the requirement that the Hearings Manager receive requests for an appeal filed pursuant to 760 CMR 67.09(2) within 21 calendar days of the date of the notice. 2. A timely appeal request is one received by the Hearings Manager within the timely notice period of ten days, as specified in 760 CMR 67.09(1)(a). 3. A timely appeal of termination request will result in aid pending the appeal decision. (c) Other than in the circumstances specified in 760 CMR 67.09(2)(b), EA applicants and recipients may not appeal the Department's decision as to the type, location or particular temporary emergency shelter provided or the Department's decision to change the temporary emergency shelter placement. (d) The EA household shall be given written and/or oral notice of the date, time and place of the hearing. Such notice shall be communicated so as to allow receipt by the EA household at least two business days prior to the hearing date. (e) There shall be an expedited hearing and an expedited fair hearing decision for all appeals of temporary emergency shelter decisions including initial placement(s), findings of noncompliance, transfer(s) and termination(s). A decision may be implemented by the Department three working days after the decision is mailed to the household. An applicant or recipient may not have the hearing postponed, continued, or rescheduled without good cause as specified in 106 CMR 343.320(D): Good Cause. The verification of good cause for failure to appear for a hearing must be provided by the recipient within five working days of the scheduled hearing. 760 CMR - 644.1 (f) Temporary emergency shelter benefits continued pending an appeal decision shall be in a shelter designated by the Department. The EA household may remain in the temporary emergency shelter placement location occupied on the date of the appeal pending the fair hearing decision with the approval of the shelter provider. (g) When the subject of the appeal is an extension of shelter benefits beyond the six-month period under 760 CMR 67.02, the hearing officer shall not substitute his or her judgment for that of the Associate Director or his or her designee. Such actions may only be overturned by a hearing officer if it is found that the Associate Director or his or her designee have abused his or her discretion when making the determination on the extension request.