ESTABLISH ORDER

CS 370P Administrative Hearing Request and Preliminary Conference

10/84 Revised 08/20/08 Training Completed 08/15/05

UCA 63G-4-102, 78B-3-208; R527-200

 

Any respondent has the right to request an administrative hearing if his/her disagreement is based on a material issue of fact raised by a Notice of Agency Action (NAA).  The respondent’s written request must be received by the Presiding Officer within 30 days after the date the NAA was served.  If the request is received 30 days after the NAA was served but before an order is issued, allow a hearing.  In cases where both parents are named as respondents in the NAA, a properly filed request for a hearing made by either party is considered a request for both parties.  Notice of the hearing must be given to the non-requesting party to inform them of the hearing and to explain how their rights may be affected.

 

In addition, the Office of Recovery Services/Child Support Services (ORS/CSS) must request an administrative hearing if a respondent participates in the NAA process and the NAA is based on imputed income.  Even though CSS requests the hearing, apply the following procedures as if the participating/contesting party is the requesting party [i.e., the party who contests the imputed income is ordered to participate in the preliminary conference and if s/he fails to participate in the preliminary conference, an administrative order may be issued without a hearing with the Office of Administrative Hearings (OAH).] 

 

If an order, either one-parent or two-parent, has already been issued and the respondent(s) participated in the NAA process, treat the hearing request as a request for reconsideration.  If one or both of the respondents defaulted in the NAA process treat the hearing request as a motion to set aside.

 

Preliminary Conference Procedures

 

Utah Code Annotated 63G-4-102.   Scope and applicability of chapter states as follows:
     “(4) This chapter does not preclude an agency, prior to the beginning of an adjudicative proceeding, or the presiding officer during an adjudicative proceeding from:
     (a) requesting or ordering conferences with parties and interested persons to:
     (i) encourage settlement;
     (ii) clarify the issues;
     (iii) simplify the evidence;
     (iv) facilitate discovery; or
     (v) expedite the proceedings.”

 

Prior to proceeding with an administrative hearing, the requesting respondent must either have provided information sufficient to clarify the issues without the necessity of conducting a Preliminary Conference (e.g. provided documentation along with the request for a hearing), or participated in a Preliminary Conference with the Office of Recovery Services/Child Support Services (ORS/CSS) as described below.  If you are satisfied that the respondent has provided sufficient information to clarify the issues and you do not believe a Preliminary Conference is likely to result in a stipulation, you may skip the steps below and proceed to forward the hearing request to the Office of Administrative Hearings (OAH).  If the respondent has failed to provide sufficient information as required, or you believe a preliminary conference will result in resolution of the issues, the Presiding Officer will take the steps listed below

 

1.                  Order the respondent to participate in a Preliminary Conference by sending the “Order to Participate in Preliminary Conference” to the requesting respondent and to the non-requesting respondent. You may send the forms by regular mail to the addresses where the Notices of Agency Action were served.  If you know that a respondent has moved, send the order to the new address by certified mail. The order includes the date, time, and place of the conference.  Also notify the agent who prepared the NAA when and where the preliminary conference will be held.

 

2.                  Conduct the preliminary conference.  All the parties may be present in the same room or in different rooms, by telephone, and at different times, etc., in order to facilitate the goal of the preliminary conference, which is to clarify the issues, simplify the evidence, expedite the proceedings, and encourage stipulation and settlement.

 

The respondent who requested the hearing and the agent who prepared the NAA should provide relevant information to the Presiding Officer.  The non-requesting respondent may also present evidence at the preliminary conference.  At a minimum, the requesting respondent should clearly describe the issues that need to be resolved.  All issues may be resolved without the need to schedule the hearing if the respondents sign a stipulation.

 

3.                  If the requesting respondent fails to participate in the Preliminary Conference as required, enter an administrative Order, selecting the option that the parent requested a hearing and defaulted on the preliminary conference, and decide all issues raised by the NAA.  The respondents do not need to participate further and the OAH does not need to be involved.

 

4.         If the respondent(s) has participated in a Preliminary Conference and the issues were not resolved, the Presiding Officer will forward the hearing request to the OAH.  Once the hearing request has been forwarded to the OAH, the Administrative Hearing Officer (AHO) or Administrative Law Judge (ALJ) becomes the Presiding Officer in the administrative action.  The OAH will notify the team and respondents of the date, time, and place of the hearing.  The hearing request will be processed according to the procedures listed below.

 

Paternity Establishment Cases

 

If an alleged father has been served with a Notice of Agency Action (NAA) for paternity establishment and he requests a hearing to contest paternity, do not forward a hearing request to the OAH.  Instead, dismiss the NAA and refer the case to the AGO to proceed judicially to establish paternity and a child support order.

 

Even if the alleged father is not contesting paternity, but has requested a hearing on the child support amount and/or on another issue raised in the NAA other than paternity, refer the case to the AGO to address judicially both the child support and paternity issues, and any other issues raised in the NAA. 

 

If a declarant father requests a hearing, schedule a Preliminary Conference by sending the “Order to Participate in a Preliminary Conference.”  Use the Preliminary Conference to clarify the issues, particularly to discuss whether paternity is in question.  If paternity is an issue and genetic testing has not been completed, agree to arrange genetic tests at no cost if the parents sign the “Paternity:  Notice to Mother/Declarant Father to Request or Decline Genetic Testing,” which gives consent for CSS to file a judicial action to rescind the “Affidavit for Voluntary Declaration of Paternity by Parents” (VDP) if the declarant father is excluded.  Arrange the genetic tests and monitor for results.  If the mother will not cooperate with genetic tests requested by a declarant father, refer the case to the AGO to proceed judicially. 

 

If the declarant father is excluded, dismiss the administrative action and refer the case to the AGO to rescind the VDP.   Ask the mother to name another possible consort.  If the declarant father is included, send him the results and request that he sign a “Stipulation and Order:  Child Support.”  If there are still unresolved issues other than paternity, refer the case to OAH for an administrative hearing as directed below. 

 

If the issue of paternity is raised for the first time at the administrative hearing, request that the hearings officer “continue” the hearing while CSS arranges genetic tests at no cost to the parties.  If genetic test results exclude the declarant father, dismiss the administrative action and refer the case to the AGO to rescind the VDP.  If the genetic test results include the declarant father with a paternity index of at least 100, paternity is no longer an issue.  Resume the administrative hearing process to establish a child support order only, as paternity remains legally established by the VDP form filed with VRS.

 

In-State OAH Hearing Procedures

 

1.                  After a requesting respondent has either provided information sufficient to clarify the issues without the necessity of conducting a Preliminary Conference (e.g. provided documentation along with the response to the NAA), or participated in a Preliminary Conference, forward the Request for a Hearing to the Office of Administrative Hearings (OAH) within two working days after receipt of the request, or within two working days after participation in a Preliminary Conference.

OAH may be able to conduct telephone hearings with prison inmates, depending on the willingness of the prison to facilitate the hearing.  Send OAH the hearing request and information about the respondent and his/her inmate number, and OAH will contact the prison to try to have the hearing approved.  Jails normally do not allow hearings unless they are holding a long-term inmate under contract for the prison.  If a hearing for an inmate is not possible, dismiss the Notice of Agency of Action (NAA) and refer the case to the Attorney General’s Office (AGO) to proceed judicially on the case.

 

OAH is also unable to conduct a hearing when paternity is an issue.  Do not forward a hearing request made by an alleged father or by a custodial parent (CP) when paternity is an issue.  See the “Paternity Establishment Cases” section above for more information concerning hearings for alleged and declarant fathers. 

 

2.                  Type the hearing request verbatim in the “Notice of Administrative Hearing” letter and send it to the non-requesting respondent by regular mail.

 

3.                  Give the case to the responsible agent.

 

When referring a case for an administrative hearing, the senior agent/Presiding Officer will complete the “Administrative Hearing Checklist” and forward it along with the required documents to the OAH.  The senior agent/Presiding Officer is responsible for completing the steps listed on the top half of the UHCA form and submitting the form with the hearing request and associated documents to the Office of Administrative Hearings (OAH).  The agent is responsible for completing the steps listed on the bottom half of the UHCA form and placing the associated documentation in the case file.

 

By forwarding a Request for Hearing to the OAH, CSS transfers responsibility to the OAH to appoint an Administrative Hearing Officer (AHO) or an Administrative Law Judge (ALJ) to act as Presiding Officer at an administrative hearing and CSS employees return to an advocate role for CSS.  Once a hearing request has been forwarded to OAH, do not attempt to finalize a stipulation with the respondents.  If the respondents wish to stipulate after the OAH request, the Presiding Officer appointed by OAH must approve any stipulations. 

 

Generally the agent responsible for the case will prepare and present the State’s evidence at the hearing.  However, if the case involves complex issues, a senior agent may present the evidence and the responsible agent may appear as a witness. Sometimes it may be appropriate for an Assistant Attorney General to present the State’s evidence (see the section below for more information). 

 

Out-Of-State Procedures

 

An out-of-state respondent who is subject to long-arm jurisdiction may also be ordered to participate in a Preliminary Conference.  Procedures for ordering out-of-state respondents to participate in a Preliminary Conference are the same as for in-state respondents; however, more flexibility in negotiating may be appropriate in some situations where other interstate remedies are expected to be less successful.

 

If the negotiation is unsuccessful, discuss the possibility of coordinating a telephone hearing with the appropriate attorney and OAH.

 

Attorney Representation

 

If a respondent is to be represented by an attorney at the hearing, a senior agent may present the State’s evidence and the responsible agent may appear as a witness.  If the case involves complex legal issues, consult with your manager about asking the Assistant Attorney General (AG) to present the evidence at the hearing.  If an AG presents the evidence, the responsible agent may appear as a witness if the issues are not overly complex.  If the case involves complex issues, a senior agent may be assigned to appear as a witness.

 

If a respondent is to be represented by an attorney at the hearing and the hearing is set in a county other than one for which the team has responsibility, you (as the responsible agent and after consulting with your manager) may refer the case to your AG who may request the assistance of an AG who has responsibility for CSS cases in that county.  If you refer the case to another county’s AG, note your name and the name of your AG on the “Administrative Hearing Checklist.”  If an AG does not need to attend the hearing, request the manager of the team that has responsibility for comparable CSS cases in that county to send a senior agent to the hearing to present the State’s evidence.  If an agent and/or attorney from another office will appear at the hearing, communicate this information to the Office of Administrative Hearings when it becomes known.  The Administrative Hearing Clerk will notify that agent and/or attorney of the hearing date and time.