Current through Register Vol. 35, No. 18, September 24, 2024
A.Request for a hearing:
(1)A request for a hearing must be submitted
in writing to the secretary of the department, within ten (10) working days of
the receipt of the notice of action, and must state with specificity the
grounds upon which the proposed action is appealed or contested, and the
grounds upon which the petitioner refutes the basis of the proposed action. The
request must include;
(a)A copy of the
department's action letter;
(b) The
dates of all relevant actions;
(c)
The names of individuals or organizations involved in the proposed action being
appealed;
(d) A specific statement
of any section of the Older Americans Act or state or federal rules or
regulations believed to have been violated by the department; and
(e) For organizations, a copy of the minutes
or resolution in which the petitioner's governing body requests a hearing, and
which authorizes a person(s) to act on behalf of the organization; the minutes
or resolution shall indicate adoption by a majority of the quorum of the
governing body of the organization.
(2) The petitioner may submit written
amendments to the request for hearing which must be received by the secretary
of the department or designee not less than ten (10) working days prior to the
date set for hearing;
(3) The
secretary of the department or designee may require additional information at
any time prior to the hearing. The secretary or designee will provide a
reasonable amount of time for the petitioner to respond to any such
request;
(4) Failure to submit all
the information required in the request within the required time period will
result in the forfeiture of the petitioner's right to a hearing.
B.Notice of hearing:
(1) Within twenty (20) calendar days of
receipt of a request for a hearing, the secretary of the department or designee
shall acknowledge in writing the receipt of the request for a hearing, and
shall determine if the petitioner is entitled to a hearing. If so, the hearing
date and notice of the hearing shall be provided to the petitioner(s). The
hearing date shall not be later than one hundred twenty (120) calendar days
from the receipt of the request for a hearing;
(2) The secretary of the department or
designee shall provide written notice of any hearing to the petitioner, which
shall include:
(a)A statement of the time,
date, location, and nature of the hearing;
(b) A statement of the legal authority and
jurisdiction under which the hearing is to be held; and
(c) A reference to the particular section of
statutes, regulations and rules involved.
(3)The secretary of the department or
designee shall, after the initial notice, issue a written statement of the
issues involved in the appeal. Thereafter a more definite and detailed
statement may be furnished not less than ten (10) calendar days prior to the
date set for the hearing.
C. The secretary shall appoint an impartial
hearing officer to preside at the hearing. The hearing officer may be an
employee of the department. The hearing officer shall have authority to
administer oaths, rule on the parties' motions, determine the admissibility of
evidence, recess any hearing, and rule on such other procedural motions as may
be presented by any of the parties.
D. Conduct of the hearing:
(1) Documentary evidence may be received by
the hearing officer 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;
(2) Parties may submit documents to the
hearing officer and other parties in written form prior to the hearing. Parties
may also stipulate as to facts or circumstances;
(3) Either party may cross-examine witnesses
to obtain a full and true disclosure of the facts;
(4) The hearing officer may take official
notice of generally recognized facts within the area of the department's
specialized knowledge. The hearing officer shall inform the parties of the
facts officially noticed either before or during the hearing, and shall afford
the parties an opportunity to contest the facts officially noticed. The special
skills or knowledge of the department and its staff may be used in evaluating
the evidence;
(5) The parties need
not make formal exceptions to the hearing officer's rulings during a hearing.
It shall be sufficient that the party informs the hearing officer of any
objection to any ruling at the time it is made.
E. During the hearing, the petitioner shall
present evidence first. Other parties shall follow and present their evidence.
The petitioner may thereafter present rebuttal evidence only. Rebuttal evidence
must be confined to the issues raised in any other party's presentation of
evidence. The petitioner shall be given the opportunity to offer a final
argument without additional presentation of evidence. In addition, the other
party may present a final argument without additional presentation of
evidence;
F. The hearing shall be
completed within one hundred twenty (120) days of the date the request for
hearing was received by the department.
G. An oral hearing shall be electronically
recorded. Upon request of any party to the hearing, a copy of this recording
shall be made available to the requesting party at cost. In addition, any party
may request that a court reporter record the hearing at the requestor's
expense. Any transcript must be certified by the hearing officer.
H.Record: The record in a hearing under this
section consists exclusively of:
(1) A copy
of the notice of proposed action that generated the appeal;
(2) The request for hearing, including all
amendments;
(3) The notice of
hearing;
(4) Written information
supporting the appeal, which was submitted to the department;
(5) The department's written statement of the
issues involved in the appeal;
(6)
All motions and rulings made before the hearing;
(7) All evidence received or
considered;
(8) A statement of
facts officially noticed;
(9) Any
decision, opinion or report by the hearing officer;
(10) All staff memoranda or data submitted to
and considered by the hearing officer;
(11) The recording and transcription, if any,
of the hearing;
(12) The hearing
officer's recommended decision; and
(13) The final decision.
I.Final decision:
(1) The hearing officer shall base his/her
recommended decision solely on the record;
(2) The hearing officer shall present to the
secretary a recommended decision, including proposed findings of fact and
conclusions of law, within ten (10) working days after the close of the
hearing. The recommendation must be in writing and signed by the hearing
officer;
(3) The secretary shall
issue a final decision, based on the hearing officer's recommendation, for the
record, within five (5) working days of the receipt of the hearing officer's
recommendation. The secretary shall affirm the action heard, unless it is
unlawful, arbitrary or not reasonably supported by substantial evidence in the
record;
(4) The secretary shall
send a copy of the final decision to all parties by registered or certified
mail, return receipt requested, within five (5) working days after it is
rendered.
J.Appeal to
the assistant secretary of the U.S. administration on aging: Only an applicant
for designation as a federally recognized planning and service area whose
application is denied by the department and whose appeal to the department has
been denied may appeal the denial to the assistant secretary of the U.S.
Administration on Aging under the procedures specified in the Older Americans
Act, 42 U.S.C. Section
3025(b)(5)(C) and
45 C.F.R. Section
1321.31. In all other cases, the secretary's
decision, based on the hearing officer's recommendation, shall be
final.
