§ 3091. Hearings
(a) An applicant for or a recipient of assistance, benefits, or social services from the
Departments for Children and Families; of Vermont Health Access; of Disabilities,
Aging, and Independent Living; or of Mental Health, or of the Department of Health’s
Women, Infant, and Children program, or an applicant for a license from one of those
departments, except for the Department of Health, 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 the individual’s 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
the individual’s receipt of assistance, benefits, or services, or license or license
application; or because the individual is aggrieved by Agency policy as it affects
the individual’s situation.
(b) The hearing shall be conducted by the Board or by a hearing officer appointed by the
Board. The Chair 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 that the Board
determines to be in conflict with State or federal law. The Board shall not reverse
or modify Agency decisions that are determined to be in compliance with applicable
law, even though the Board may disagree with the results effected by those decisions.
(e)(1) The Board shall give written notice of its decision to the person applying for fair
hearing and to the Agency.
(2) Unless a continuance is requested or consented to by an aggrieved person, decisions
and orders concerning Temporary Assistance to Needy Families (TANF) under 33 V.S.A. chapter 11, TANF-Emergency Assistance (TANF-EA) under Title IV of the Social Security Act, and
medical assistance (Medicaid) under 33 V.S.A. chapter 19 shall be issued by the Board within 75 days after the request for hearing.
(3) Notwithstanding any provision of subsection (c) or (d) or subdivision (1) of this
subsection (e) to the contrary, in the case of an expedited Medicaid fair hearing,
the Board shall delegate both its fact-finding and final decision-making authority
to a hearing officer, and the hearing officer’s written findings and order shall constitute
the Board’s decision and order in accordance with timelines set forth in federal law.
(f) The Agency or the appellant may appeal from decisions of the Board to the Supreme
Court under V.R.A.P. 13. 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,
Medicaid, and the Vermont Health Benefit Exchange. 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 misinterprets or misapplies State or federal policy or rule;
and
(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, Medicaid, and the Vermont Health
Benefit Exchange 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 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 V.R.A.P.
13. 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.
(i) In the case of an appeal of a Medicaid covered service decision made by the Department
of Vermont Health Access or any entity with which the Department of Vermont Health
Access enters into an agreement to perform service authorizations that may result
in an adverse benefit determination, the right to a fair hearing granted by subsection
(a) of this section shall be available to an aggrieved beneficiary only after that
individual has exhausted, or is deemed to have exhausted, the Department of Vermont
Health Access’s internal appeals process and has received a notice that the adverse
benefit determination was upheld. (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; 2015, No. 172 (Adj. Sess.), § E.304; 2017, No. 210 (Adj. Sess.), § 13, eff. June 1, 2018; 2019, No. 131 (Adj. Sess.), § 4; 2023, No. 113 (Adj. Sess.), § C.104, eff. May 23, 2024.)