Current through Register Vol. 50, No. 9, September 20, 2024
A. Right
to a Hearing. The Governor's Office of Elderly Affairs (GOEA) shall provide an
opportunity for a hearing and issue a written decision to any person filing a
formal grievance with the Office of the State Ombudsman pursuant to
§1229.
L.3.b or to the ombudsman against whom the
grievance was filed, whenever either party disagrees with the decision rendered
by the State Ombudsman pursuant to LAC 4:VII.1229 L.3.f or L.5.b.iii.
B. Request for Hearing
1. A request for hearing must be received by
GOEA within 30 days following petitioner's receipt of the notice of the State
Ombudsman's decision.
2. A request
for hearing must be in writing and must state with specificity the grounds upon
which the State Ombudsman's decision is appealed. The request must include:
a. the dates of all relevant
actions;
b. the names of
individuals or organizations involved in the action;
c. a specific statement of any laws or
regulations believed to have been violated; and
d. all grounds upon which petitioner refutes
the State Ombudsman's decision.
C. Notice of Hearing
1. Upon receipt of a request for hearing, the
director shall, within 10 working days, set a date for the hearing.
2. GOEA shall issue a written notice to the
petitioner and other interested persons which shall include:
a. a statement of time, date, exact physical
location (to include street address and city), and nature of the
hearing;
b. a statement of the
legal authority and jurisdiction under which the hearing is to be
held;
c. a reference to the
particular Section of statutes, regulations, and rules involved;
d. a short and plain statement of the reasons
for the decision that is being appealed and the evidence on which the decision
was based; and
e. a statement that
with agreement of all affected parties, hearings may be conducted by telephone
conference or other electronic means.
3. Petitioner shall be given no less than 10
working days notice of the scheduled hearing. Notice shall be sent by
registered or certified mail, return receipt requested.
D. Hearing Examiner
1. The director or his/her designated
representative shall be the hearing examiner and preside at the hearing,
subject to the provisions of
R.S.
49:950 et seq. The hearing examiner shall
have authority to administer oaths, rule on motions and the admissibility of
evidence, to recess any hearing from time to time, and rule on such other
procedural motions as may be presented by the State Ombudsman or the
petitioner.
2. The hearing examiner
shall conduct the hearing in accordance with the procedures outlined herein and
render a fair decision. In rendering his/her decision, the hearing examiner
shall consider:
a. all information relevant to
the complaint;
b. the provision of
Section
307(a) (12) of
the Older Americans Act which requires the State Ombudsman or his/her
representatives to "investigate and resolve complaints made by or on behalf of
older individuals who are residents of long term care facilities relating to
action, inaction or decisions...which may adversely affect the health, safety,
welfare or rights of such residents"; and
c.R.S. 2010.4 (D), which states, "No
representative of the Office of the State Ombudsman will be liable under state
law for the good faith performance of official duties as defined by state and
federal laws and regulations."
E. Rules of Evidence
1. The rules of evidence as applied in civil
cases in the district courts of this state shall be followed. Irrelevant,
immaterial, or unduly repetitious evidence shall be excluded. When necessary to
ascertain facts not reasonably susceptible of proof under those rules, evidence
not admissible thereunder may be admitted, except where precluded by statute,
if it is a type commonly relied upon by reasonably prudent persons in the
conduct of their affairs. Objection to evidentiary offers may be made and shall
be noted in the record.
2.
Documentary evidence may be received by the hearing examiner in the form of a
copy or excerpt if the original is not readily available. On request, either
party shall be given an opportunity to compare the copy with the
original.
3. If a hearing will be
expedited and the interests of parties will not be prejudiced substantially,
any part of the evidence may be received in written form or the parties may
stipulate as to facts or circumstances or summarize same.
4. Either party may conduct cross-examination
required for a full and true disclosure of the facts.
5. Official notice may be taken by the
hearing examiner of all facts judicially cognizable. In addition, notice may be
taken of generally recognized facts within the area of GOEA's specialized
knowledge. Parties shall be notified either before or during the hearing, or by
reference in preliminary reports or otherwise, of the material officially
noticed, including any staff memoranda or data; and afforded an opportunity to
contest the material so noticed. The special skills or knowledge of GOEA and
its staff may be utilized in evaluating the evidence.
6. Formal exceptions to rulings of the
hearing examiner during a hearing shall be unnecessary. It shall be sufficient
that the party at the time any ruling is made or sought shall have made known
to the hearing examiner, the action desired. When testimony is excluded by the
hearing examiner, the party offering such evidence shall be permitted to make
an offer of proof by dictating or submitting in writing the substance of the
proposed testimony, prior to the conclusion of the hearing, and such offer of
proof shall be sufficient to preserve the point for review. The hearing
examiner may ask such questions of the witness as he deems necessary to satisfy
himself that the witness would testify as represented in the offer of
proof.
F. Ex Parte
Consultations. Communications between the hearing examiner and any party or
interested person or his/her representative shall be governed by
R.S.
49:950 et seq. the Administrative Procedure
Act.
G. Depositions and Subpoenas.
The taking and use of depositions and the issuance of subpoenas shall be
governed by
R.S.
49:956 (5)-(8) of the Administrative
Procedure Act.
H. Hearing. The
procedure to be followed for hearings held under
§1273 shall be
as provided in Subsection 1267
J
I. Transcript. The rules
governing transcripts for hearings held under
§1273 shall be
as provided in Subsection 1267
K
J. Final Decision. All decisions
shall be in writing and shall be rendered and acted upon by the director within
60 days of the close of the hearing. A copy of the decision shall be sent
immediately to the applicant by registered or certified mail, return receipt
requested. A copy of the decision shall also be sent to any other persons
directly affected by the decision.
K. Rehearing and Appeal. Procedures for
rehearings and appeals shall be governed by
R.S.
49:959 and 965.
L. Record. The record in a hearing under this
Section shall consist of the materials listed in
§1267.
M
AUTHORITY NOTE:
Promulgated in accordance with
45 CFR
1321.11(a), published in the
Federal Register/Vol. 53, No. 169/Wednesday, August 31,
1988.
