Current through Register 2024 Notice Reg. No. 38, September 20, 2024
(a) Licensees
or vendors who are dissatisfied with an action of the Department arising from
licensing, selection as a vendor, termination or suspension of a license or vendor
operating agreement, probation, or administration of the BEP may request a full
evidentiary hearing before a hearing officer. All requests for a full evidentiary
hearing shall:
(1) Be made within 30 working days
of the action with which the licensee or vendor is dissatisfied, or within the time
frame specified in Section
7227.1(e) of these
regulations, if the licensee or vendor elected to participate in the administrative
review process. In cases involving the suspension or termination of licensure or
probation, the date of the action shall be deemed to be two days after the date the
Department mails the written notice of proposed action specified in Section
7213.1 of these regulations.
(2) Be made in writing to the Department's Legal
Affairs Office.
(3) Be date stamped by
the Department's Legal Affairs Office upon receipt when the postmark is illegible or
the request is personally delivered.
(b) The licensee or vendor shall be notified of:
(1) The time and place of the hearing, which shall
be accessible to both the hearing officer and the licensee or vendor and at a
geographical location convenient to the licensee or vendor.
(2) The hearing procedures, including but not
limited to:
(A) The circumstances under which a
continuance may be granted.
(B) The
opportunity to be represented by an authorized representative of the licensee's or
vendor's choosing.
(C) The necessity of
confirming attendance at the scheduled hearing.
(c) Any party or the hearing officer may request a
continuance of the full evidentiary hearing which may be granted at the discretion
of the hearing officer. A continuance shall be granted only if good cause exists and
shall not extend the date of the full evidentiary hearing for more than 20 calendar
days from the original hearing date. The hearing officer shall give written notice
of any continuance to all parties. The notice of continuance for good cause shall
include the grounds upon which the continuance was granted. For purposes of this
subsection, good cause includes, but is not limited to, the following:
(1) Death of a family member of a party or
authorized representative. For the purposes of this section family member shall
include, but is not limited to, spouse or domestic partner.
(2) Illness of a party or authorized
representative.
(3) Unavoidable
conflicts in schedules that are beyond the control of a person essential to the full
evidentiary hearing.
(4) Unavailability
of a witness or evidence, the absence of which would result in prejudice to the
licensee or vendor.
(d) The
hearing officer shall voluntarily disqualify him or herself from hearing a case in
which he or she cannot accord a fair and impartial consideration. Any party may
request a disqualification of the hearing officer by filing an affidavit prior to
the taking of evidence at the hearing, stating with particularity the grounds by
which it is believed a fair and impartial hearing may not take place. Within five
working days of the filing of the affidavit, the issue shall be decided by the
Director or Chief Deputy Director and a new full evidentiary hearing
scheduled.
(e) Except for properly
granted continuances, the licensee or vendor shall be given one opportunity to
appear at a scheduled hearing. Failure to appear occurs when the licensee or vendor
is more than thirty minutes late for a hearing without good cause, as determined by
the hearing officer, or has failed to give the hearing officer at least twenty-four
hours notice of intent not to appear. Failure of an authorized representative to
appear shall not constitute failure of the licensee or vendor to appear, provided
the licensee or vendor agrees that the full evidentiary hearing shall proceed in the
absence of the authorized representative. Upon the licensee's or vendor's failure to
appear at a scheduled full evidentiary hearing, the hearing officer shall
immediately send, by certified mail, to the licensee or vendor and the authorized
representative, if any, a notice stating that the opportunity to appear has been
exhausted and that a request to reschedule the full evidentiary hearing for good
cause must be received by the Department within ten working days. If a response is
not received within the required period, the hearing officer shall inform the
Director who may dismiss the appeal with prejudice. If the request to reschedule is
received within the required period and the hearing officer finds good cause has
been shown, the full evidentiary hearing shall be rescheduled within 20 calendar
days of receipt of the showing of good cause.
(f) The rules governing the full evidentiary
hearing shall be as follows:
(1) The hearing
officer shall receive all relevant evidence as specified in Government Code Section
11513(c).
(2) All testimony shall be under oath or
affirmation. The hearing officer is hereby empowered to administer such oath or
affirmation.
(3) The licensee or vendor
may appear alone, with an authorized representative, or be represented by an
authorized representative.
(4) The
Department may be represented by the BEP Manager or staff, legal counsel, or any
other person designated by the Department.
(5) All parties shall be allowed to call witnesses
and to submit any relevant evidence.
(6)
All parties shall be allowed to confront and question adverse witnesses.
(7) If it appears to the hearing officer that
additional evidence not produced at the hearing is necessary for a full and fair
hearing, he/she may order any of the following:
(A)
A continuance of the hearing to take the additional evidence.
(B) That the record be left open to allow a party
to submit written evidence not produced at the hearing. The other party shall be
given an opportunity to respond to the new evidence and may request the hearing
officer to reconvene the full evidentiary hearing if that is necessary for a fair
response. The hearing officer shall determine whether or not reconvening is
justified or if the record will be closed after he or she reevaluates the
record.
(C) All documents submitted
under (A) and (B) above shall be served upon both the hearing officer and the other
party or parties.
(8) If the
parties reach a settlement agreement prior to the record in the full evidentiary
hearing being closed, the written settlement agreement executed by the parties shall
be submitted to the Director who may issue the final decision in conformity
therewith. If the Director does not issue a final decision in conformity therewith,
the matter shall be remanded to the hearing officer for a full evidentiary
hearing.
(9) The hearing officer shall
prepare and submit to the Director a proposed decision within fifteen calendar days
from the date the hearing record is closed. The hearing officer shall mail a copy of
the proposed decision to the licensee or vendor and authorized representative, if
any, at the time of submission to the Director. The proposed decision shall include
at a minimum the following:
(A) The
issues.
(B) The findings of
fact.
(C) The reasons for the proposed
decision referencing applicable laws, regulations and policy.
(10) Within 15 calendar days from receipt of the
proposed decision from the hearing officer, the Director shall review the proposed
decision based upon the standards specified in paragraph (11) of this section and
take one of the following actions:
(A) Adopt the
proposed decision in its entirety as the final decision.
(B) Decide an additional review is necessary to
either:
1. Modify the proposed decision.
2. Reject the proposed decision and decide the
matter on the basis of the record with or without additional
evidence.
(11) The
following standards of review shall be applied by the Director when reviewing each
proposed decision rendered by the hearing officer. The proposed decision shall be
adequately supported by:
(A) The sufficiency of
the evidence.
(B) The findings of
fact.
(C) Applicable state and federal
laws and regulations.
(12) If
the Director chooses to conduct an additional review of the proposed decision, he or
she shall provide notice of the intent to review to all parties within the time
limit specified in paragraph (10) of this section and may do either of the
following:
(A) Resubmit the matter to the hearing
officer for the taking of additional evidence in accordance with paragraph (7) of
this section. In this instance the Director shall render a final decision within 15
calendar days of the receipt of the additional evidence.
(B) Modify the proposed decision or reject the
proposed decision on the basis of the record without additional evidence. In this
instance, the Director shall render a final decision within 15 calendar days of
having provided notice of his or her intent to review the proposed
decision.
(13) The Director
shall base the final decision upon careful consideration of:
(A) The issues.
(B) The findings of fact.
(C) Applicable law, regulation and
policy.
(D) Any new evidence submitted
by the licensee or vendor or authorized representative in conjunction with the
Department's written response or rebuttal to the new evidence.
(14) The final decision shall be sent to the
licensee or vendor and the authorized representative, if any, by certified mail
within five working days of the decision being adopted by the Director. An
explanation of the licensee's or vendor's right to file a complaint with the
Secretary shall be mailed with the final decision.
(g) The record of the hearing shall consist of the
decision resulting from the administrative review, if that process was undertaken
prior to the full evidentiary hearing, the proposed decision, the final decision, a
transcript or recording of the hearing, and all exhibits, papers and reports filed
in the proceeding. If requested by the licensee or vendor or the authorized
representative, the record of the hearing or any part thereof shall be furnished to
him or her within 30 calendar days from receipt of a written request at a cost not
to exceed ten cents per page or for free if fewer than ten pages are
requested.
(h) If a licensee or vendor
is dissatisfied with the decision made after a full evidentiary hearing he or she
may request that an arbitration panel be convened by filing a complaint with the
Secretary of the United States Department of Education pursuant to
20 United States Code section
107d-1(a).
1. New section
filed 2-4-93; operative 3-8-93 (Register 93, No. 6).
2. Amendment of
section and NOTE filed 9-22-2009; operative upon the approval of the Secretary of
the United States Department of Education, in accordance with title 34, Code of
Federal Regulations, section
395.4(a) (Register
2009, No. 39).
3. Approved by the Secretary of the United States
Department of Education in accordance with section
395.4(a) of title 34
of the Code of Federal Regulations on 6-2-2010; operative 9-15-2010 pursuant to
section 7210(b)(2) of title 9
of the California Code of Regulations (Register 2010, No. 39).
4. Change
without regulatory effect redesignating subsections (c)-(i) as subsections (b)-(h)
and amending newly designated subsection (f)(13)(D) filed 1-14-2014 pursuant to
section 100, title 1, California Code of
Regulations (Register 2014, No. 3).
Note: Authority cited:
20 USC Section
107b(5);
34 CFR Section
395.4; and Sections
19006,
19016 and
19639, Welfare and Institutions Code.
Reference: 20 USC
107b(5),
107b(6),
107d-1 and
107d-2;
34 CFR Section
395.13; and Section
19635, Welfare and Institutions
Code.
