1. (a) An applicant may challenge the Department's hardship waiver decision by requesting an estate hearing. The request must be in writing and mailed to the Director of the Department through his or her designee, the Office of Administrative Hearings and Appeals, within 60 days of the date of the Department's decision inscribed at the top of the Department's notice.

   1. (1) The Department shall provide the applicant at least 30 days notice of the date, time and place of the hearing. The hearing shall be conducted within 60 days from the date of the request, and may be continued for good cause, such as illness, injury or incarceration of the applicant.
   2. (2) For an in-state applicant the Department shall conduct the hearing within the California Court of Appeal district where the applicant resides. In the case of an out-of-state applicant, the hearing shall be conducted in Sacramento, California.
   3. (3) At the estate hearing, the applicant and/or the applicant's representative shall have the opportunity to be heard, offer evidence, and present witnesses in support of the request for a waiver. All testimony shall be submitted under oath, affirmation, or penalty of perjury. The proceedings at the estate hearing shall be electronically recorded. The applicant and/or the applicant's representative shall be prepared to leave copies of all documents which support the applicant's request for a waiver with the hearing officer.
2. (b) The hearing shall be conducted in an impartial manner by a hearing officer appointed by the Director.
3. (c) A proposed decision, stating the applicable law, evidence and reasoning upon which the decision is based, shall be submitted to the Director no more than 30 days after the hearing record is closed. Within 30 days after the proposed decision is received by the Director, the Director may adopt the proposed decision, reject the proposed decision and have a decision prepared based upon the record, or refer the matter to the hearing officer to take additional evidence. If the Director takes no action within 30 days after receipt of the proposed decision, the decision shall be deemed adopted.
4. (d) Any errors or omissions in the information provided by the applicant that would affect the Department's decision may be a basis for denial of the request for hardship waiver.
5. (e) The decision shall be final upon adoption by the Director and no further administrative appeal shall occur. Copies of the decision shall be mailed by certified mail to the applicant or his or her designated representative.
6. (f) Judicial review of the final decision of the Department may be had by filing a petition for a writ of administrative mandate in accordance with the provisions of Section 1094.5, et seq., Code of Civil Procedure.

Note: Authority cited: Section 20, Health and Safety Code; and Sections 10725 and 14124.5, Welfare and Institutions Code. Reference: Section 1396p(b), 42 USC; Section 1094.5, et seq., Code of Civil Procedure; Section 14009.5, Welfare and Institutions Code; and Section 69100, Government Code.

History

1. New section filed 5-2-94 as an emergency; operative 5-2-94 (Register 94, No. 18). A Certificate of Compliance must be transmitted to OAL by 8-30-94 or emergency language will be repealed by operation of law on the following day. For prior history, see Register 92, No. 39.

2. Repealed on 8-31-94 by operation of law.

3. New section filed 4-27-95 as an emergency; operative 4-27-95 (Register 95, No. 17). Exempt from OAL review pursuant to Chapter 147, Statutes of 1994, section 32. A Certificate of Compliance must be transmitted to OAL by 10-24-95 or emergency language will be repealed by operation of law on the following day.

4. New section refiled 11-22-95 as an emergency; operative 11-22-95 (Register 95, No. 47). Exempt from OAL review pursuant to Chapter 147, Statutes of 1994, section 32. A Certificate of Compliance must be transmitted to OAL by 3-21-96 or emergency language will be repealed by operation of law on the following day.

5. Certificate of Compliance as to 4-27-95 order, including amendment of section and Note, transmitted to OAL 2-6-96 and filed 3-19-96 (Register 96, No. 12).

6. Amendment of section and Note filed 3-23-2005; this filing is deemed an emergency and is exempt from review by OAL pursuant to Welfare and Institutions Code section 14043.75(a); effective 3-23-2005 (Register 2005, No. 12). A Certificate of Compliance must be transmitted to OAL by 7-21-2005 or emergency language will be repealed by operation of law on the following day.

7. Reinstatement of section and Note as they existed prior to 3-23-2005 emergency amendment by operation of Government Code section 11346.1(f) (Register 2005, No. 41).

8. Amendment of subsections (a) and (e) and Note filed 5-10-2006; operative 5-10-2006 pursuant to Government Code section 11343.4 (Register 2006, No. 19).

9. Change without regulatory effect amending Note filed 4-15-2008 pursuant to section 100, title 1, California Code of Regulations (Register 2008, No. 16).