ESTABLISH ORDER

CS 1382P CIC Reconsideration 

8/88  Revised 04/29/05

UCA 63-46b-13

 

NOTE: CIC-specific procedures contained in this section.

 

Statute and Introduction

 

Utah Code Annotated UCA 63-46b-13 (Agency review -- Reconsideration.) states:
   “(1) (a) Within 20 days after the date that an order is issued for which review by the agency or by a superior agency under Section 63-46b-12 is unavailable, and if the order would otherwise constitute final agency action, any party may file a written request for reconsideration with the agency, stating the specific grounds upon which relief is requested.
     (b) Unless otherwise provided by statute, the filing of the request is not a prerequisite for seeking judicial review of the order.
     (2) The request for reconsideration shall be filed with the agency and the person making the request shall mail one copy to each party.
     (3) (a) The agency head, or a person designated for that purpose, shall issue a written order granting the request or denying the request.
     (b) If the agency head or the person designated for that purpose does not issue an order within 20 days after the filing of the request, the request for reconsideration shall be considered to be denied.”

“Participation Orders” and “Orders Denying Motions to Set Aside Default Orders” which have been issued by the Office of Recovery Services/Children in Care Program (ORS/CIC) are subject to reconsideration if a request is made in writing within 20 days after the final order is issued.  There is no specific form required for requesting reconsideration; however, the request for reconsideration must be in writing, must state specific grounds upon which relief is requested, and must provide the evidence to support the grounds for relief.

 

A respondent(s) to the action or CIC may request reconsideration of an Administrative Hearing Order issued by the Office of Administrative Hearings (OAH) within 20 days after the final order is issued. 

 

Procedures: Request for Reconsideration Received From Respondent(s)

 

If you receive a request for reconsideration from a respondent(s), take the following steps.

 

1.         If the Team Presiding Officer receives a request for reconsideration from a respondent, forward the request as follows: 

a.         Order issued by CIC:  Forward the request and case file to the Program Presiding Officer (PPO).

b.         Order issued by the Office of Administrative Hearings (OAH): Forward the request to the Administrative Law Judge (ALJ) or Administrative Hearing Officer in OAH who issued the order.  OAH will review the request and determine whether to grant reconsideration.  If OAH grants reconsideration of an Administrative Hearing Order, prepare the case thoroughly for the hearing, since this will likely be the only opportunity for covering all issues. 

 

2.         Grant or deny the request for reconsideration:  The PPO will grant or deny the request for reconsideration as soon as possible upon receipt of the request.

a.         Request Denied:  If the PPO denies the request for reconsideration, issue an “Order Denying Respondents Request for Reconsideration.”  Send a copy of the order to the respondent(s).  This form ends the reconsideration process.  

b.         Request Granted:  If the PPO grants the request for reconsideration, issue an “Order Granting Respondents Request for Reconsideration.”  This form indicates that CIC will look at the evidence again; it does not end the reconsideration process.  This form also gives the day, time and place of the Preliminary Conference.  Send a copy to the respondent and responsible TPO.  Consider the basis for the original order, as well as any pertinent new information bearing on the issues, in the reconsideration process.  The PPO will use the following guidelines when scheduling a conference:

                        i.          In Office Conference -  The respondent should bring in the Financial Declaration and proof of expenses.

ii.          Telephonic Conference  The Financial Declaration must be mailed in to the PPO at least five (5) working days before the conference.

 

NOTE:  The PPO should complete the Preliminary Conference process within 50 working days after receiving the case.  If a conference is rescheduled, the process may take up to 65 working days.

c.         Request neither granted nor Denied:   If the PPO neither grants nor denies the request within 20 days, the request is considered denied and the original order stands.  Forward the case back to the post order team to continue enforcement.

 

3.         Limit enforcement activity on the case:  Once a request for

reconsideration is granted, you must limit enforcement activity during the reconsideration review.

4.         Re-scheduling – If the respondent calls to reschedule the preliminary conference, send the new date, time, and place, along with a new Financial Declaration form.  A preliminary conference may only be re-scheduled two times or at the PPO’s discretion, three times.

 

5.         Conduct the Preliminary Conference (no order will be issued on the day of the conference):  Both the respondent(s) and TPO may submit any documents at the conference.  For telephonic hearings, the respondent(s)  must mail the documents to the PPO at least five (5) working days before the scheduled conference.  Documents sent via fax the day of the conference will not be admitted.

           

It is up to the PPO to decide if the conferences will be taped.  Hearsay is admissible.  However, if a household expense seems high or out of the ordinary, verification may be required.  The PPO may rebut the Child Support Guidelines, if appropriate.

 

6.         Review all the information and determine the support amount.

a.         Review all income information, and determine if verified income information has been received for the other parent(s) on the separate case(s).  If verified income information for the other parent is found, use that income in the child support worksheet when determining the amount.

b.         Complete the Net Income and Debt Calculation Reviewing Tool and determine the support amount.   

 

8.         Make a reconsideration determination and issue the appropriate order: 

a.         Original order upheld:  If the PPO determines that the original order should be upheld, issue an order affirming the original order.  Choose the correct “affirming” order based on the types of original order as follows:

i.          Participation Order:  issue the “Judgment and Order Based on Reconsideration:  Order Affirmed.”).

ii.          “Order Denying Motion to Set Aside Default”:  Issue the “Judgment and Order Based on Reconsideration:  Order Affirmed.”

b.         Original order changes:  If the PPO determines that the original order should change based on the evidence presented during reconsideration, issue the appropriate order as follows.

i.          Participation Order:  Issue the Judgment and Order Based on Reconsideration: Child Support.  This order contains all the options to create a new, enforceable, child support order based on the evidence presented during reconsideration.  Send a copy of the order to the respondent(s). 

 

NOTE:  If the evidence results in a change to the worksheet that would increase the obligation to an amount higher than that in the original Notice of Agency Action, you must send out an amended NAA to the respondent(s).  The amended NAA may be sent by first class mail to the address where the original Notice of Agency Action was served.  If you know that the respondent(s) has moved, send the amended NAA to the new address by certified mail.  Follow all UAPA procedures and timeframes as explained in the Establish Order sections.  You do not need to send an amended NAA if the change in the worksheet would lower the amounts for both parents or if both parents will sign a stipulation agreeing to the higher amounts.

ii.          “Order Denying Motion to Set Aside Default”:  Issue the “Order to Set Aside Award.”  Since the original order is being set aside, begin the appropriate process to establish a new child support order, including service of a Notice of Agency Action if the original NAA is also being set aside.

 

9.         Resume enforcement activity if the original order is upheld or a new order is established. 

 

If the respondent(s) does not agree with the reconsideration determination, the respondent may file for judicial review of the administrative order.  A respondent(s) may file for judicial review of an administrative order without requesting reconsideration first.  Reconsideration is not a prerequisite for judicial review.

 

Procedures: Request for Reconsideration of OAH Order Initiated by CIC

 

Occasionally it may be necessary for CIC to pursue reconsideration of an OAH order.  For example, the order does not address an item requested in the Notice of Agency Action or something in the order is inconsistent with Utah law.  A request for reconsideration must be made within 20 days of the order being issued by OAH.  If you believe it may be appropriate to request reconsideration of an OAH order, refer to the steps listed below.

 

1.                  Review the case and the order with your manager or CIC Bureau Director to determine whether CIC should pursue reconsideration of the order.  If a request for reconsideration is deemed inappropriate, the order should be enforced as written.  Otherwise, proceed to the next step.

 

2.                  Generate the ORS/CIC Request for Reconsideration of Administrative Hearing Order.  Provide this form to the CIC Bureau Director for signature.  If the CIC Bureau Director does not approve the request for amendment, do not pursue reconsideration further, and enforce the order as written. 

 

3.                  Generate the Notification of Request for Reconsideration or Motion to Amend Administrative Hearing Order.  Prepare a copy for the respondent(s) named in the order.

 

4.                  Send the original, signed request to OAH.

 

5.                  Send the a copy of the request to the respondent(s) named in the order.  Mail the forms by first class mail.

 

6.                  Monitor for response from OAH.  OAH will review the request and issue a written order granting the request or denying the request within 20 days.  If the OAH does not issue an order within 20 days after the filing of the request, the request for reconsideration shall be considered to be denied.

a.         Request Granted:  Prepare the case thoroughly for any possible hearing, as this will likely be the only opportunity to address all issues.  Attend any scheduled hearings.  Monitor for the order based on reconsideration.

b.         Request Denied:  Add the existing support order to ORSIS and begin enforcement activity.