Robin Hammer v. West Virginia Department of Human Services, Bureau for Family Assistance

IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA

FILED

ROBIN HAMMER,

December 4, 2025

Appellant Below, Petitioner

ASHLEY N. DEEM, CHIEF DEPUTY CLERK

INTERMEDIATE COURT OF APPEALS

v.) No. 25-ICA-139 (Bd. of Review Case No. 25-BOR-1169) OF WEST VIRGINIA

WEST VIRGINIA DEPARTMENT OF HUMAN SERVICES,

BUREAU FOR FAMILY ASSISTANCE,

Respondent Below, Respondent

MEMORANDUM DECISION

Petitioner Robin Hammer appeals the February 27, 2025, decision from the West

Virginia Office of Inspector General Board of Review (“BOR”). The BOR upheld the

January 2025 termination of Mr. Hammer’s Supplemental Nutrition Assistance Program

(“SNAP”) benefit by Respondent West Virginia Department of Human Services, Bureau

for Family Assistance (“Department”). The Department filed a response.1 Mr. Hammer

filed a reply.

This Court has jurisdiction over this appeal pursuant to West Virginia Code § 51-

11-4 (2024). After considering the parties’ arguments, the record on appeal, and the

applicable law, this Court finds no substantial question of law and no prejudicial error. For

these reasons, a memorandum decision affirming the BOR’s order is appropriate under

Rule 21 of the Rules of Appellate Procedure.

Mr. Hammer receives SNAP benefits paid through the Department. In compliance

with federal law, Department policy states that SNAP recipients are required to participate

in periodic eligibility reviews, and that the failure of a recipient to complete the review will

result in termination of benefits.2

1

Mr. Hammer is self-represented. The Department is represented by Attorney

General John B. McCuskey, Esq., and Assistant Attorney General Carl E. Hostler, Esq.

2

Here, the controlling Department policy is West Virginia Income Maintenance

Manual Chapter 1.2.2.B, which states:

Periodic reviews of total eligibility for recipients are mandated by federal

law. These are redeterminations and take place at specific intervals,

depending on the program or Medicaid coverage group. Failure by the client

to complete a redetermination will result in termination of benefits. If the

client completes the redetermination process by the specified program

1

On December 16, 2024, the Department sent Mr. Hammer a SNAP eligibility review

form along with a notice of a telephonic interview with a Department economic services

worker for January 9, 2025. During the interview, Mr. Hammer disclosed to the economic

services worker that his girlfriend had moved into his household. During that call, the

Department worker told Mr. Hammer that additional information regarding his rent and

income would be needed to complete the review. As a result, on January 10, 2025, the

Department sent Mr. Hammer a Verification Checklist form, requesting that Mr. Hammer

provide documentation to verify his rent expense, and proof of self-employment income

and expenses. Mr. Hammer was directed to return the form and requested information no

later than January 19, 2025. It is undisputed that Mr. Hammer timely submitted the

requested information to the Department.3

However, around the same time, on January 17, 2025, the Department sent Mr.

Hammer a notice of adverse decision, informing him that his SNAP benefits would be

terminated after January 31, 2025, because he did not complete the eligibility review

process. This notice was postmarked for that same day. According to testimony on behalf

of the Department at the administrative hearing, Mr. Hammer was sent the January 17,

2025, notice because his case was tagged as “pending” in the Department’s case

management system; and that a “pending” designation is sent regardless of the reason,

thirteen days prior to end of the month in which benefits cease.4

deadline(s) and remains eligible, benefits must be uninterrupted and received

at approximately the same time.

The redetermination process involves basically the same activities described

in the Application Process above. Eligibility system changes and client

notification of any changes resulting from the redetermination conclude the

process.

3

As illustrated by the record, due to circumstances outside of Mr. Hammer’s

control, he could not readily access some or all of the income information that the

Department requested by January 19, 2025, and as a result, the Department attributed Mr.

Hammer’s income as zero for purposes of his SNAP benefit calculation.

4

West Virginia Income Maintenance Manual Chapter 9.3.1 provides that for

qualifying adverse actions, the Department is required to give advance notice of an adverse

action by ensuring that a notice is mailed to the affected client “at least [thirteen] days prior

to the first day of the month in which the benefits are affected.” See also Common Chapters

Manual Chapter 710.14(b) (“[n]otice shall be mailed at least 13 days before the effective

date of any action or decision which may be adverse to the applicant or recipient.”).

2

When the system generates such a notice, the system changes the status of the

recipient’s case from pending to closed. Testimony established that as a standard

Department practice, the notices are then printed and mailed to benefit recipients by the

Department’s central office instead of the local Department office handling the recipient’s

case. Mr. Hammer received the January 17, 2025, notice after he complied with the

Department’s request for additional information.

As a result, on January 24, 2025, Mr. Hammer submitted a written request to the

Department for a fair hearing to protest the termination of his SNAP benefits, which was

received by the BOR on January 27, 2025. Shortly thereafter, the Department reviewed

Mr. Hammer’s additional information and issued a letter dated January 27, 2025, informing

Mr. Hammer that his SNAP benefits were approved for his household, effective February

1, 2025. Although approved, Mr. Hammer’s benefits were reduced after including his

girlfriend’s income as part of his household income. Mr. Hammer learned of the SNAP

approval on January 27, 2025, and at that time, he contacted the Department and verbally

withdrew his hearing request. According to the record, a physical copy of the January 27,

2025, letter was auto-generated by the Department’s system and automatically printed at

the Department’s central office that same day for mailing. However, it is undisputed that,

for unknown reasons, the letter was not postmarked for mailing until February 3, 2025.

Nevertheless, in response to Mr. Hammer’s verbal withdrawal of his hearing request, the

Department sent Mr. Hammer a letter dated January 29, 2025, which confirmed his

withdrawal of the hearing request and informed Mr. Hammer that he had thirteen days to

rescind the withdrawal and reinstate the hearing.

On February 2, 2025, Mr. Hammer informed the Department that he was reinstating

his hearing request and requesting that his SNAP benefits continue pending the outcome

of the hearing. See 7 C.F.R. 273.15(k) (2017). The BOR issued a scheduling order to the

parties, which, among other things, set the matter for hearing on February 19, 2025, and

required the parties to provide all documents intended to be introduced at the hearing to

the BOR’s hearing officer and the opposing party no later than five business days prior to

the hearing. Mr. Hammer contends he timely submitted all his documents but received no

documents from the Department at any time prior to the hearing. He further contends that

on February 14, 2025 (the Friday before the administrative hearing), he provided Carla

Marsh, his local Department economic services worker, with a written request for a copy

of his entire Department file. At the administrative hearing, Ms. Marsh explained that she

did not respond to his request because the preceding Monday (February 17th) was a legal

holiday and, thus, the request was not received until the next day and that given Mr.

Hammer’s comprehensive request and the size of his case file, there was not adequate time

to prepare a copy prior to the hearing.5 Notably, Mr. Hammer did not seek to continue the

5

Upon inquiry from the hearing officer, Mr. Hammer could not identify the specific

documents he was seeking. Ultimately, however, the hearing was briefly held in recess for

3

administrative hearing or otherwise to object to proceeding with his fair hearing for any

reason.

The administrative hearing was held before the BOR’s hearing officer on February

19, 2025. Ms. Marsh was the Department’s lone representative. At the outset of the hearing,

the parties agreed that in accordance with the scheduling order, the only issue to be heard

was the merits of the Department’s January 17, 2025, termination notice. 6 During the

administrative hearing, Mr. Hammer focused his protest on what he perceived to be

irregularities with Department procedure.

For example, Mr. Hammer claims that even though he provided the Department

with the additional information it requested, he never received the January 10, 2025,

Verification Checklist form. Ms. Marsh explained that the checklist was also generated by

the Department’s system based upon information the Department needed to complete the

eligibility review based upon responses he provided during his telephonic interview with

the Department on January 9, 2025.7 The checklist was system generated and mailed by

the central office to Mr. Hammer’s address on file.

He also alleged that the January 27, 2025, letter had been fabricated and objected to

its admission into evidence. According to Mr. Hammer, it was not possible for the letter to

have been issued on January 27, 2025, and not mailed until February 3, 2025, when the

January 17, 2025, notice letter was postmarked the same day. Ms. Marsh explained that the

date on the letter represents the date on which it was created by the case management

system, and that the letter was printed and mailed through the central office. The hearing

officer admitted the letter into evidence and noted Mr. Hammer’s objection.

Next, Mr. Hammer contended that because he did not receive the January 27, 2025,

letter until February 3, 2025, the Department failed to comply with the governing federal

regulation, 7 C.F.R. § 273.13(a)(1), because he did not receive notice that his benefits were

Ms. Marsh to obtain a copy of the January 10, 2025, Verification Checklist, and the January

27, 2025, letter.

6

The scheduling order stated: “This matter is pending on [Mr. Hammer]’s protest

to the decision by the Department of Human Services to terminate [SNAP] benefits as

outlined in the Notice dated January 17, 2025.”

7

At the time of the interview, a different economic services worker was assigned to

Mr. Hammer’s case before it was transferred to Ms. Marsh and then to a different worker

at the local Department office. However, Ms. Marsh had firsthand knowledge of the events

surrounding the prior worker’s efforts on Mr. Hammer’s eligibility review, which included

approving Mr. Hammer’s benefits as reflected in the January 27, 2025, letter.

4

renewed at a reduction until after the scheduled allotment of his SNAP benefits on February

1, 2025. On this issue, Ms. Marsh explained that although Mr. Hammer’s benefits were

going to cease at the end of January, the benefits were renewed as of the January 27, 2025,

letter, and as a result, Mr. Hammer was timely allotted his SNAP benefits as scheduled,

just at a reduced amount based upon the changes to his household income.8

Lastly, as his closing argument, Mr. Hammer asserted that his primary argument is

that he never received anything in writing from the Department documenting the changes

that occurred in his benefits and written notices were not properly given. Similarly, he

asserted that the January 17, 2025, notice of termination inaccurately states that he failed

to complete eligibility review when, in fact, the process was ongoing due to the additional

information requested by the Department. He further contended that it was obvious from

the record that the January 27, 2025, letter was not created until February 3, 2025, when it

was postmarked, and that the Department only created the letter and accompanying

documents on February 3, 2025, because of his February 2, 2025, correspondence

rescinding the withdrawal of his hearing request.9

The hearing officer issued the BOR’s decision on February 27, 2025, which upheld

the Department’s issuance of the January 17, 2025, notice of termination to Mr. Hammer.

The BOR’s order set forth that the Department had complied with its policy and federal

law by conducting the periodic eligibility review of Mr. Hammer’s SNAP benefits, and

that those authorities clearly state that the Department must close benefits for a recipient

who does not complete the eligibility review. The testimony of Ms. Marsh established that

because Mr. Hammer’s eligibility review was pending on January 17, 2025, the

Department’s case management system auto-generated the termination notice with

standard language indicating that his SNAP benefits were being closed because he had not

completed his eligibility review, and that the system changed Mr. Hammer’s case status

from pending to closed. However, it was not disputed that at the time of the notice, Mr.

Hammer was in the process of complying with the Department’s request for additional

8

Reviewing the transcript of the administrative hearing, it appears that based upon

a colloquy between the parties and the hearing officer, the Department informally agreed

to restore Mr. Hammer’s benefits to the amount he previously received prior to the

reduction, pending the hearing officer’s written decision. This is not formally addressed in

the order on appeal; nevertheless, it has no bearing on our decision herein.

9

Mr. Hammer also attempted to raise arguments regarding his girlfriend’s SNAP

account and her classification as part of his household during this hearing. However, the

hearing officer did not permit the same, but rather, informed Mr. Hammer that this hearing

only related to his SNAP account, and that his girlfriend would have to file a separate

proceeding to protest her grievances regarding the Department’s handling of her SNAP

account.

5

information to complete its review of Mr. Hammer’s benefits, nor was it disputed that Mr.

Hammer’s review process was ultimately completed, his SNAP benefits were approved,

and his case was reopened prior to the end of January 2025 when the termination was to

take effect.

The order also found that while Mr. Hammer claims he did not receive the January

10, 2025, Verification Checklist form, there was no evidence that the mailing was returned

to the Department, and that this issue was seemingly moot because Mr. Hammer provided

the requested information and was subsequently approved for benefits, which was set forth

in the January 27, 2025, letter. The BOR also found the mailing of the January 27, 2025,

letter on February 3, 2025, did not violate Department policy because the letter informed

Mr. Hammer that his benefits redetermination process was complete and approved his

benefits at a reduced amount, and that the benefit reduction was not an adverse action from

which the Department was required to give advanced notice.10 It was further determined

that advance notice was not required pursuant to 7 C.F.R. § 273.13(a)(3).11 The order also

10

West Virginia Income Maintenance Manual Chapter 9.3.1.B states: “The

following adverse actions do not require advance notice . . . For SNAP only: when the

benefit is terminated or reduced as a result of a redetermination.” See also Common

Chapters Manual § 710.14(c)(3) (SNAP benefits terminated or reduced upon

redetermination are not an adverse action subject to the thirteen-day notice requirement).

11

7 C.F.R. § 273.13(a)(3) provides:

The State agency may notify a household that its benefits will be reduced or

terminated, no later than the date the household receives, or would have

received, its allotment, if the following conditions are met:

(i) The household reports the information which results in the reduction or

termination.

(ii) The reported information is in writing and signed by the household.

(iii) The State agency can determine the household's allotment or ineligibility

based solely on the information provided by the household as required in

paragraph (a)(3)(ii) of this section.

(iv) The household retains its right to a fair hearing as allowed in § 273.15.

(v) The household retains its right to continued benefits if the fair hearing is

requested within the time period set by the State agency in accordance

with § 273.13(a)(1).

(vi) The State agency continues the household's previous benefit level, if

required, within five working days of the household's request for a fair

hearing.

(emphasis added).

6

made an express finding that Mr. Hammer stated on the record that he was not challenging

the Department’s reduction of his SNAP benefits in this proceeding.

The BOR’s order ultimately concluded that the Department took proper action to

terminate Mr. Hammer’s benefits on January 17, 2025, and that the Department correctly

reinstated Mr. Hammer’s benefits on January 27, 2025, after receiving Mr. Hammer’s

additional information and completing his eligibility review. This appeal followed.

Our standard of review is as follows:

The court may affirm the order or decision of the agency or remand the case

for further proceedings. It shall reverse, vacate, or modify the order or

decision of the agency if the substantial rights of the petitioner or petitioners

have been prejudiced because the administrative findings, inferences,

conclusions, decision, or order are:

(1) In violation of constitutional or statutory provisions;

(2) In excess of the statutory authority or jurisdiction of the agency;

(3) Made upon unlawful procedures;

(4) Affected by other error of law;

(5) Clearly wrong in view of the reliable, probative, and substantial evidence

on the whole record; or

(6) Arbitrary or capricious or characterized by abuse of discretion or clearly

unwarranted exercise of discretion.

W. Va. Code § 29A-5-4(g) (2021); accord W. Va. Code § 16B-2-2(c) (2024) (specifying

that the provisions of West Virginia Code §§ 29A-5-1 to -5 apply to this Court’s appellate

review of BOR decisions).

On appeal, Mr. Hammer raises four assignments of error, which reiterate some of

the arguments he made below, as well as raising new arguments. We will address them in

turn.

First, Mr. Hammer argues that his due process rights were violated when the January

17, 2025, termination notice was issued because the Department informed him that he had

until January 19, 2025, to respond. Thus, he was not afforded a full ten days to respond to

either the Department request for more information, in violation of Section 1.4.8 of the

West Virginia Income Maintenance Manual (“IMM”) (“Additional information requested

from the applicant is due 10 calendar days from the date of the . . . verification checklist”)

and 7 C.F.R. § 273.14(b)(4) (2021) (“The household must be allowed a minimum of 10

days to provide required verification information. . . .”). We are not persuaded by this

argument.

7

Here, the facts of this case establish that the January 17, 2025, termination notice

was computer-generated, contained standard language, and was issued to comply with the

thirteen-day advance adverse notice requirements under Department policy. This action

was not the result of human error, and although it resulted in the Department’s case

management system changing the status of Mr. Hammer’s case from pending to closed,

this was short-lived. In fact, it is uncontroverted the Department completed the eligibility

review and awarded Mr. Hammer SNAP benefits prior to his next scheduled allotment in

February and, thus, his benefits continued without interruption. As such, we conclude that

Mr. Hammer suffered no actual prejudice from the Department’s overlapping bureaucratic

processes in this case, and that under the facts of this case, any technical violations of

Department policy on this issue constitute harmless error, at best.

Next, Mr. Hammer argues that the BOR erred by finding that the Department

properly notified him that his benefits were being reduced. Specifically, Mr. Hammer

contends that this is established by the January 27, 2025, letter not being postmarked until

February 3, 2025. According to Mr. Hammer, the reduction of his benefits constitutes an

adverse action requiring the thirteen-day advance notice under IMM Chapters 9.3.1 and

9.3.1.A. We disagree with Mr. Hammer on this issue. The plain language of IMM Chapter

9.3.1 states “[a] client must receive advance notice in all situations involving adverse

actions except those described in [Chapter 9.3.1.A].” To that end, IMM Chapter 9.3.1.A

states that decreases in SNAP benefits “are not adverse actions [requiring advance notice

under IMM Chapter 9.3.1], but do require client notification[.]” Further, IMM Chapter

9.3.1.B expressly excludes SNAP benefits “terminated or reduced as a result of a

redetermination” from the advance notice requirements for adverse actions. Here, the

record establishes that the January 27, 2025, letter and reduction of SNAP benefits was a

result of a benefit redetermination by the Department. As such, there was no advance notice

requirement for this Department action. Instead, Department policy simply requires that

Mr. Hammer be notified of the change, and there is no dispute that the January 27, 2025,

letter notified Mr. Hammer of the reduction in his SNAP benefits. Therefore, Mr. Hammer

is not entitled to relief on this assignment of error.

In his final two assignments of error, Mr. Hammer contends that the hearing officer

failed to consider whether the Department erred when it required him to produce

documentation evidencing his self-employment income and expenses for the past six

months. He also contends that the Department erred when it failed to provide him

documentation at least five days prior to the hearing under the BOR’s scheduling order and

when it refused to honor his request for a copy of his entire case file. We find no merit in

either argument. Notably, as evidenced by the BOR’s order and supported by this Court’s

review of the hearing transcript, Mr. Hammer expressly stated that he was not challenging

the Department’s benefit calculation in this proceeding; moreover, although he noted the

scheduling order and case file request issues at the administrative hearing, at no time did

Mr. Hammer lodge an objection to proceeding with the hearing or otherwise seek a

continuance of the hearing. See Johnson v. State Dep’t of Motor Vehicles, 173 W. Va. 565,

8

571, 318 S.E.2d 616, 622 (1984) (“As a general rule, nonjurisdictional issues not objected

to at trial are deemed waived and may not be raised for the first time on appeal.”); see also

Syl. Pt. 3, in part, Hudgins v. Crowder & Freeman, Inc., 156 W. Va. 111, 191 S.E.2d 443

(1972) (holding “what does not so appear [in the record,] does not exist in law.”).

Therefore, Mr. Hammer has waived these issues for the purposes of appeal, and we decline

to consider the same.

Based on the foregoing, we conclude that Mr. Hammer has failed to carry his burden

of establishing that his substantial rights were prejudiced by the Department’s January 17,

2025, administrative closure of his SNAP benefits case. Thus, we find no error and affirm

the BOR’s February 27, 2025, decision.

Accordingly, we affirm.

Affirmed.

ISSUED: December 4, 2025

CONCURRED IN BY:

Chief Judge Charles O. Lorensen

Judge Daniel W. Greear

Judge S. Ryan White

9