DAR File No. 27936

Workforce Services, Workforce Information and Payment Services

R994-508-109

Hearing Procedure

NOTICE OF PROPOSED RULE

DAR File No.: 27936
Filed: 05/24/2005, 05:06
Received by: NL

RULE ANALYSIS

Purpose of the rule or reason for the change:

The purpose for this change is to make this rule consistent with proposed changes to Rule R994-406.

Summary of the rule or change:

The Department has proposed changing the evidentiary standard in fraud cases from "preponderance of the evidence" to "clear and convincing proof" to make unemployment cases the same as public assistance cases administered by the Department.

State statutory or constitutional authorization for this rule:

Section 35A-1-104, and Subsections 35A-1-104(4) and 35A-4-502(1)(b)

Anticipated cost or savings to:

the state budget:

There will be no costs or savings to the state budget. This is a federally-funded program and this change merely reflects what the Department has always done in the case of fraud. If fraud is not found, the claimant will still be at fault for the overpayment. Since the state is a reimbursable employer, the state recovers the same from a fault overpayment as a fraud overpayment so there will be no difference.

local governments:

There will be no costs or savings to local governments. This is a federally-funded program and this change merely reflects what the Department has always done in the case of fraud. If fraud is not found, the claimant will still be at fault for the overpayment. Since most local governments are reimbursable employers, the local governmental entity recovers the same from a fault overpayment as a fraud overpayment so there will be no difference.

other persons:

There will be no costs or savings to any other persons since this change merely reflects Department practice in fraud cases. It is not anticipated that there will be any change in the number of fraud cases.

Compliance costs for affected persons:

The Department has determined that there are no costs associated with complying with this provision of the rule. Individuals who correctly file their claims for benefits are not subject to the overpayment provisions of this rule.

Comments by the department head on the fiscal impact the rule may have on businesses:

There will be no fiscal impact on business as a result of this rule change. The Department does not anticipate fewer fraud findings. Employers receive the same credit for fault overpayments as for fraud overpayments so it will have no impact on unemployment rates. Tani Downing, Executive Director

The full text of this rule may be inspected, during regular business hours, at the Division of Administrative Rules, or at:

Direct questions regarding this rule to:

Suzan Pixton at the above address, by phone at 801-526-9645, by FAX at 801-526-9211, or by Internet E-mail at spixton@utah.gov

Interested persons may present their views on this rule by submitting written comments to the address above no later than 5:00 p.m. on:

07/15/2005

This rule may become effective on:

07/16/2005

Authorized by:

Tani Downing, Executive Director

RULE TEXT

R994. Workforce Services, Workforce Information and Payment Services.

R994-508. Appeal Procedures.

R994-508-109. Hearing Procedure.

(1) All hearings will be conducted before an ALJ in such manner as to provide due process and protect the rights of the parties.

(2) The hearing will be recorded.

(3) The ALJ will regulate the course of the hearing to obtain full disclosure of relevant facts and to afford the parties a reasonable opportunity to present their positions.

(4) The decision of the ALJ will be based solely on the testimony and evidence presented at the hearing.

(5) All testimony of the parties and witnesses will be given under oath or affirmation.

(6) All parties will be given the opportunity to provide testimony, present relevant evidence which has probative value, cross-examine any other party and/or other party's witnesses, examine or be provided with a copy of all exhibits, respond, argue, submit rebuttal evidence and/or provide statements orally or in writing, and/or comment on the issues.

(7) The evidentiary standard for ALJ decisions, except in cases of fraud, is a preponderance of the evidence. Preponderance means evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not. The evidentiary standard for determining claimant fraud is clear and convincing evidence. Clear and convincing is a higher standard than preponderance of the evidence and means that the allegations of fraud are highly probable.

(8) The ALJ will direct the order of testimony and rule on the admissibility of evidence. The ALJ may, on the ALJ's own motion or the motion of a party, exclude evidence that is irrelevant, immaterial, or unduly repetitious.

(9) Oral or written evidence of any nature, whether or not conforming to the rules of evidence, may be accepted and will be given its proper weight. A party has the responsibility to present all relevant evidence in its possession. When a party is in possession of evidence but fails to introduce the evidence, an inference may be drawn that the evidence does not support the party's position.

(10) Official Department records, including reports submitted in connection with the administration of the Employment Security Act, may be considered at any time in the appeals process including after the hearing.

(11) Parties may introduce relevant documents into evidence. Parties must mail, fax, or deliver copies of those documents to the ALJ assigned to hear the case and all other interested parties so that the documents are received prior to the hearing. Failure to prefile documents may result in a delay of the proceedings. If a party has good cause for not submitting the documents prior to the hearing or if a party does not receive the documents sent by the Appeals Unit or another party prior to the hearing, the documents will be admitted after provisions are made to insure due process is satisfied. At his or her discretion, the ALJ can either:

(a) reschedule the hearing to another time;

(b) allow the parties time to review the documents at an in-person hearing;

(c) request that the documents be faxed during the hearing, if possible, or read the material into the record in case of telephone hearing; or

(d) leave the record of the hearing open, send the documents to the party or parties who did not receive them, and give the party or parties an opportunity to submit additional evidence after they are received and reviewed.

(12) The ALJ may, on his or her own motion, take additional evidence as is deemed necessary.

(13) With the consent of the ALJ, the parties to an appeal may stipulate to the facts involved. The ALJ may decide the appeal on the basis of those facts, or may set the matter for hearing and take further evidence as deemed necessary to decide the appeal.

(14) The ALJ may require portions of the testimony be transcribed as necessary for rendering a decision.

(15) All initial determinations made by the Department are exempt from the provisions of the Utah Administrative Procedures Act (UAPA). Appeals from initial determinations will be conducted as formal adjudicative proceedings under UAPA.

KEY: unemployment compensation, appellate procedures

[April 4, 2004]2005

Notice of Continuation June 11, 2003

35A-4-508(2)

35A-4-508(5)

35A-4-508(6)

35A-4-406

35A-4-103

ADDITIONAL INFORMATION

PLEASE NOTE:

• Text to be deleted is struck through and surrounded by brackets (e.g., [example]). Text to be added is underlined (e.g., example). Some browsers may not depict some or any of these attributes on the screen or when the document is printed.
• Please see the DISCLAIMER regarding information available from state web pages.

For questions regarding the content or application of this rule, please contact Suzan Pixton at the above address, by phone at 801-526-9645, by FAX at 801-526-9211, or by Internet E-mail at spixton@utah.gov

For questions about the rulemaking process, please contact the Division of Administrative Rules (801-538-3764). Please Note: The Division of Administrative Rules is NOT able to answer questions about the content or application of these administrative rules.