Current through Register Vol. 49, No. 9, September, 2024
1098.0 APPEALS AND HEARINGS
PROCEDURES
1098.1
Policy
Department of Human Services (DHS) administrative adjudications
are to be conducted impartially, timely, fairly, professionally, and
objectively, and are to lead to decisions that are consistent with applicable
state and federal laws.
1098.2
Definitions
1098.2.1
Administrative
Adjudication: the process for the formulation of an
order.
1098.2.2
APA: The Arkansas Administrative Procedure Act,
beginning at Ark. Code Ann. §
25-15-201.
1098.2.3
Appellant:
the party applying for DHS services or appealing DHS adverse action.
1098.2.4
Burden of
Proof: The responsibility to establish a proposition by sufficient
evidence. An appellant seeking to establish eligibility for DHS benefits or
services has the burden of proving his or her eligibility. If the appeal
challenges DHS adverse action, DHS has the burden of proving the facts
necessary to support the adverse action.
1098.2.5
Conflict of
Interest: a situation where, with respect to the claim or
controversy before the hearing official, the official:
A. has been a party or acted as an advocate
for a party; or
B. has a direct or
indirect financial interest. A financial interest is indirect if it exists
though the hearing official's spouse, child, parent, sibling, or grandparent,
or through the hearing official's ownership or management interest in any
entity having a financial interest.
1098.2.6
DHS: the
Department of Human Services.
1098.2.7
Process
Procedures: procedures assuring that appellants have notice of the
denial or other action, notice of the administrative adjudication proceedings,
and an opportunity during those proceedings to appear, be represented, be
heard, offer evidence and arguments, and call and cross examine
witnesses.
1098.2.8
Financial Interest: more than a remote possibility of
a gain or loss resulting from the outcome of the claim or
controversy.
1098.2.9
Good Cause: Substantial reason, that which a
reasonably prudent and intelligent person would find justifiable.
1098.2.10
Hearing
Official: an administrative law judge or hearing officer employed
by the Office of Administrative Hearings (OAH).
1098.2.11
Impartiality: the absence of bias or prejudice or the
appearance of bias or prejudice, in the hearing official's application of the
agency's special knowledge and expertise to the issues under consideration. An
appearance of bias or prejudice exists if any party has reasonable cause to
question the hearing official's impartiality.
1098.2.12
OAH: the
Office of Appeals and Hearings of the Department of Human Services.
1098.2.13
Order: a
final agency determination that may be appealed to a circuit court under the
APA.
1098.2.14
Party: the person asking for the administrative
adjudication, and the DHS division or office, acting through its employees,
which made the decision or took the action being appealed.
1098.2.15
Reasonable
Cause: circumstances sufficiently strong to warrant a cautious
person's belief that an allegation is true.
1098.2.16
Recusal:
an order disqualifying the hearing official from hearing the appeal.
1098.2.17
Relevant
Evidence: evidence tending to make the existence of any fact that
is of consequence to the administrative adjudication more probable or less
probable than it would be without the evidence.
1098.2.18
Representative: a person selected by a party to
present that party's statements, arguments, and evidence during the
administrative adjudication process. A corporation or association cannot be a
representative.
1098.3
Right to Administrative Adjudication: Unless a different
administrative remedy is provided by statute, regulation, or rule, any person
denied DHS assistance, and any person entitled by state or federal law or rule
to appeal an adverse DHS action, may initiate an administrative adjudication by
submitting a written appeal in compliance with the requirements applicable to
the assistance denied or adverse action taken.
1098.4
Notice of Representative:
Appellants who intend to be represented at any stage of an adjudication
must notify OAH of the name, address, and telephone number of the
representative as soon as possible, and at least ten business days before any
hearing. Appellants who fail to comply with this requirement must choose to:
(1) proceed without representation; or
(2) request that the hearing be
delayed to afford the agency at least ten business days to secure
representation, if the request includes a waiver of any timeframe that is
inconsistent with the delay.
1098.5
Interpreters: If any
party requires an interpreter, due to hearing impairment or an inability to
communicate in the English language, the party must notify OAH of the need for
an interpreter at least ten business days before a hearing. OAH will
immediately direct DHS to secure the services of an interpreter. If the party
requiring an interpreter does not furnish timely notice of the need for an
interpreter, the hearing will be rescheduled. If the new schedule fails to
comply with any applicable timeframe, the party requiring an interpreter will
be deemed to have waived that timeframe.
1098.6
Timeframes: Most DHS
programs have time limitations for the completion of administrative
adjudications. Timeframes are the bases for hearing schedules. Failure to meet
a timeframe does not deprive OAH of jurisdiction to administratively adjudicate
the appeal, but may be the basis for one or more orders directing parties to
take certain actions in a timely manner, and may warrant sanctions against
parties that fail to follow OAH orders.
1098.7
Resolution without a Hearing:
There are four ways to end an administrative adjudication without a
hearing:
1098.7.1 DHS withdraws the adverse
action on the record at the hearing or in writing before the hearing
1098.7.2 The appellant withdraws the appeal
request on the record at the hearing or in writing before the hearing
1098.7.3 The parties reach a mutually
agreeable resolution of the appeal and file written notice of settlement
explaining the terms of the settlement; or
1098.7.4 OAH dismisses the appeal as
defective.
1098.8
Hearings
1098.8.1
Special
Types of HearingA. Special
Nutrition Program: See Family Day Care Home (FDCH)-3.
B. Medical Necessity/ Medical Disability
Decisions:
1. The hearing official will notify
the appellant in writing that if the appellant has evidence regarding the
initial application and asserted disability, the appellant must provide the
information to the hearing official or complete a "Consent for Release of
Information" form as soon as possible and before the hearing.
2. The hearing will not be delayed for
failure to submit additional evidence.
3. Evidence presented to the hearing official
will be limited to evidence of eligibility as of the date of denial by DHS. The
hearing official will refuse evidence about subsequent medical
necessity/disability and advise the applicant to submit a new application to
DHS.
4. A physician employed by DHS
to review denials will be available by phone for the hearing if requested or
subpoenaed by any party.
5. The
hearing official will hear medical and non-medical evidence regarding
eligibility. The hearing official will make the final decision regarding
eligibility.
1098.8.2
Hearing
Officials: Each hearing official must act impartially.
A. Hearing officials must not have
communication with any party to an administrative adjudication if any other
party is excluded from the communication, except that the following
communications are acceptable:
1.
Communication necessary to schedule hearings and the submission of exhibits and
arguments; or
2. Communication
necessary to identify, without comment or argument, any exhibits or documents
being delivered to OAH.
B. Conflict of Interest:
1. Any hearing official having a conflict of
interest must notify the OAH Managing Administrative Law Judge immediately upon
discovering a conflict of interest, and must not take any further action
regarding the claim or controversy.
2. A hearing official must recuse if the
hearing officer has personal knowledge of the facts of the case or has a
conflict of interest.
3. A hearing
official should recuse if any party has reasonable cause to suspect that the
hearing officer may not be impartial.
1098.8.3
Attendance:
Administrative adjudications are public proceedings, and are open to the public
subject to state and federal confidentiality laws and rules. An appellant may
waive his or her right to confidentiality, but may not waive another's right to
confidentiality. For example, an appellant may not waive an alleged child
victim's right to confidentiality in a child maltreatment case; may not waive a
nursing home resident's right to confidentiality in an adult abuse or neglect
case; and may not waive a child's right to confidentiality in a Special
Nutrition case.
A. The hearing official may
determine that a party is physically or mentally unable to attend or
participate, or that the party's presence will so disrupt the proceedings that
the adjudication cannot continue in an orderly fashion unless the party is
excluded. Party representatives may be present at all stages of the proceedings
unless the hearing official determines that a representative's presence will so
disrupt the proceedings that the adjudication cannot continue in an orderly
fashion unless the representative is excluded.
B. Interpreters may be present when necessary
to facilitate communication before and during a hearing. Interpreters shall be
placed under oath before interpreting testimony. The following oath is
suggested: "Do you solemnly affirm that you will truthfully and accurately
interpret all questions and answers?"
C. Witnesses may be present unless:
(i) any party has asked that the witnesses be
excluded except while testifying; or
(ii) the evidence is confidential by state or
federal law or rule, and disclosing the evidence to a non-testifying witness
would violate that confidentiality. If witnesses are excluded from the hearing,
the witnesses shall be instructed that until a witness is released, that
witness must not discuss the evidence with another witness, and must not
discuss any other witness's testimony with anyone.
D. Observers will be excluded if the evidence
to be presented is confidential under state or federal law or rule, and
disclosing the evidence to the observer would violate that state or federal law
or rule.
E. News media: Persons
representing the news media will be excluded if the evidence to be presented is
confidential under state or federal law or rule, and disclosing the evidence to
the observer would violate that state or federal law or rule.
1098.8.4
Opening and
Closing Statements: Each party may be given an opportunity to make
an opening and closing statement, limited to ten minutes unless the issues are
so complex that the hearing official determines that more time is required to
adequately explain the parties' contentions.
1098.8.5
Questions
Allowed: Questioners may ask only one question at a time.
Questions may not take the form of statements or contentions, and must not be
asked in such a way as to bully or intimidate a witness.
1098.8.6
Newly acquired
evidence:
A. Admissible evidence
that was not submitted to the person or persons who made the decision under
appeal may be admitted in appeals under Ark. Code Ann. § 12-12-512 or
§ 5-28-211. Newly acquired evidence may be admitted in other appeals only
if the evidence:
1. concerns events or
circumstances predating the application, request, or decision under appeal;
and
2. could not have been obtained
by the party offering the evidence despite that party's due diligence in
acquiring evidence.
B.
If the hearing official determines that newly acquired evidence is admissible,
the hearing official shall return the case to the decision-maker so that the
newly acquired evidence may be considered, or shall determine that there is
good cause not to return the case. Each good cause finding and the reasons
therefore shall be stated in the findings of fact and conclusions of
law.
1098.8.7
Allowing additional evidence after the hearing: If a
request to receive additional identified and specifically described evidence is
made at the hearing, OAH may for good cause hold the hearing record open for a
specified period of time to receive additional admissible and relevant evidence
that will assist the hearing official in deciding the case.
1098.9
Commencement of
Administrative Adjudication
1098.9.1
Each appeal shall begin with the filing of a written notice of appeal in the
time and manner specified for the subject matter of the appeal.
1098.9.2 Upon receipt of a sufficient and
timely notice of appeal, the OAH shall assign a number to the appeal, schedule
the appeal for a hearing within the applicable timeframe, and mail written
notice of the time, date, and place of the appeal to the parties by regular
mail posted at least thirteen days before the date of the hearing. DHS parties
may be notified by interdepartmental mail or by DHS E-mail. Notice is
presumptively complete upon mailing or upon transmission by interdepartmental
mail or DHS E-mail.
1098.9.3 Upon
receipt of an untimely notice of appeal OAH shall notify the appellant that the
appeal was not filed in time. The notice shall be sent by certified mail,
return receipt requested, and shall inform the person that he or she may have a
right under the APA to appeal OAH's determination of untimely filing.
1098.9.4 Upon receipt of an appeal filed
other than in the manner specified for the subject matter of the appeal, the
OAH shall inform the appellant that the appeal was defective, and explain the
defect. The notice shall be sent by certified mail, return receipt requested,
and shall inform the appellant that he or she may have a right under the APA to
appeal OAH's determination that the appeal was defective.
1098.10
Discovery: Discovery is
the process whereby one party requests documents from the other party, submits
written interrogatories to the other party, or takes witness depositions by
phone or in person. If one or more parties want to have discovery, the parties
are encouraged to agree informally on discovery procedures. If the parties
cannot agree, any party may ask the hearing official to enter a discovery
order. All discovery orders will be guided generally by the Arkansas Rules of
Civil Procedure regarding discovery, except as necessary to meet timeframes or
otherwise fit the administrative adjudication process.
1098.11
Securing the Attendance of
Witnesses: Witnesses may appear voluntarily or involuntarily if properly
served with a subpoena. Subpoenas direct the witness to appear and give
testimony at a specified time and place, and also may direct the witness to
bring documents. To obtain a witness subpoena, parties must follow the
instructions on the attached subpoena request form. OAH must receive each
subpoena request at least ten business days before the hearing. Each party is
responsible for serving (delivering) each subpoena in accordance with Rule 45
of the Arkansas Rules of Civil Procedure.
1098.12
Postponements: Any
party may request that a hearing be rescheduled to a later date. Requests
should be made in writing and delivered to OAH and all other parties. Verbal
requests must be followed by a written request mailed or faxed no later than
one business day after the verbal request. Except in cases of actual emergency,
all postponement requests must be received at least ten days before a hearing.
OAH shall deny DHS postponement requests that are incompatible with appeal
timeframes. OAH may for good cause grant other postponement requests. Any
postponement order that is incompatible with appeal timeframes shall notify the
party requesting the continuance that his or her request is deemed a waiver of
any objections, defenses, or both based on timeframes.
1098.13
Location of Hearings:
Hearings may be held in the OAH office at 7l
and Main Streets n Little Rock, Arkansas, in the county office in the county
where the appellant resides, by telephone, or by videoconference.
1098.14
Failure to appear:
Regardless of whether the appellant is represented, the appellant must
appear in person for all hearings regarding program eligibility or program
services, or show good cause why he or she cannot be present. If any party
fails to appear (either in person or by telephone) within fifteen minutes after
the hearing was scheduled to begin, OAH will confirm that the party had proper
notice of the hearing and will attempt to contact the absent party. The hearing
official may allow an additional fifteen minutes before beginning the hearing.
When the hearing begins, the hearing official will identify for the record any
party not present in person or by telephone. If the appellant does not appear,
the appeal shall be deemed abandoned, subject to reopening on a showing hat the
appellant exercised due diligence but was unable to appear due to circumstances
beyond the appellant's control. If the agency does not appear, the hearing
official may proceed with the hearing and may consider any hearing statements
or other documents submitted by the agency.
1098.15
Burden of Going Forward:
When a hearing begins, the burden of going forward is on the party with
the burden of proof. When that party has presented his or her evidence, the
burden of going forward shifts to the other party. After that evidence is
submitted, the party with the burden of proof may offer rebuttal evidence. For
example, if a person named as a perpetrator of child maltreatment appeals the
maltreatment finding, DHS has the burden of proof so it presents evidence
first. The appellant then presents his or her evidence. After that, DHS may
present rebuttal evidence. This process may continue until the party with the
burden of proof decides to offer no more evidence.
1098.16
Order of Witnesses: The
party with the burden of proof goes first. Each party determines the order in
which to call its own witnesses. The hearing official may direct, or the
parties may agree, to take one or more witnesses out of turn, for example, to
accommodate the witness's schedule or expedite the hearing process.
1098.17
Record Made: OAH will
tape record each hearing. If the OAH decision is appealed, OAH will prepare a
transcript or cause a transcript to be prepared for filing in the circuit court
as provided in the APA.
1098.18
Findings of Fact and Conclusions of Law: Each OAH decision will
be in writing and will separately set out findings of fact, conclusions of law,
and an order. OAH will furnish each party a copy of the findings of fact,
conclusions of law, and order by mailing a copy to the party's last known
address by certified mail, return receipt requested.
1098.19
Reconsideration: Within
ten calendar days of a party's receipt of the findings of fact, conclusions of
law, and the order, any party may request reconsideration.
Simultaneous to a request for reconsideration, the party shall
notify the opposing party of the request.
1098.20
Grounds for Reconsideration:
Reconsideration is for the limited purposes of correcting material
misstatements of the record, clear errors of law, or both. Each request for
reconsideration must state in plain terms the grounds upon which the requestor
relies. OAH shall summarily deny any reconsideration that asks OAH to receive
additional evidence, exercise its discretion differently, or modify or reverse
any finding, conclusion, or order for any reason other than correcting material
misstatements of the record, clear errors of law, or both.
1098.21
Reconsideration Process:
Any party requesting reconsideration shall provide to OAH proof of notice to
the opposing party. The opposing party shall have ten calendar days from the
receipt of the notice to respond to the request. If necessary, OAH may
reconvene both parties for argument on the request for reconsideration and
shall notify both parties of a reconsideration conference.
1098.22
Reconsideration Decision:
If OAH determines that there are good and sufficient grounds for
reconsideration, it shall amend the findings of fact, conclusions of law, and
decision as necessary to correct any material misstatement of the record, clear
error of law, or both. OAH shall issue any amended findings of fact,
conclusions of law, and order within thirty calendar days of receiving the
reconsideration request, unless the period for the reconsideration decision is
waived. The amended findings of fact, conclusions of law, and order shall be
the final agency determination as provided in the APA. OAH shall furnish copies
of the amended findings of fact, conclusions of law, and order to the parties
as provided in 1098.18.
1098.23
Final Agency Determination: If OAH does not receive a written
request for reconsideration within ten calendar days of a party's receipt of
the initial findings of fact, conclusions of law, and order, the initial
findings of fact, conclusions of law, and order shall become the final agency
determination as provided in the APA.
