Current through Register Vol. 35, No. 18, September 24, 2024
A.
Request for a hearing: A request for a hearing specifying the nature of the
appeal must be made to the state agency on aging in writing within ten (10)
working days after the petitioner receives the final action letter from the
service provider, area agency or state agency. The request must specify all
grounds upon which the petitioner refutes the basis of the proposed action.
This request must include:
(1) a copy of the
service provider's, area agency's or state agency's action letter;
(2) the dates of all relevant
actions;
(3) the names of
individuals and organizations involved in the action being appealed;
and
(4) a specific statement of any
section of the act or federal or state rules or regulations believed to have
been violated by the area agency or the state agency in taking the action being
appealed.
B. Informal
disposition: Upon receipt of request for a hearing, the service provider, area
agency or state agency and the petitioner shall attempt to informally resolve
the dispute that is the subject of the appeal.
C. Submission of information:
(1) In cases where an area agency decision is
being appealed, the area agency shall furnish, within ten (10) working days,
copies of the following documents to the state agency, with a copy to the
petitioner:
(a) the minutes of the meeting of
the area agency's governing body at which the subject action was considered and
taken;
(b) the minutes of the
meeting of the area agency's advisory council at which the subject action was
considered and recommended;
(c)
area agency memoranda, staff reports, and evaluations relevant to the action
appealed;
(d) the criteria used in
awarding the contract involved in the hearing;
(e) application evaluation sheets;
(f) copy of contract(s); and
(g) the petitioner's application and
competing applications for the contract involved in the hearing.
(2) Unless the state agency grants
an evidentiary hearing, no additional information may be submitted; however,
the hearing officer may request additional information pertinent to the review
of documents.
D.
Evidentiary hearing: If the director determines that an appeal involves a
dispute as to a material fact the resolution of which would be assisted by oral
testimony, the director may schedule a hearing to take testimony by notifying
all parties of the date, place, time and rules of the hearing by registered or
certified mail, return receipt requested.
E. Conduct of the hearing: The hearing shall
be governed by the following.
(1) Hearing
officer: The director shall select an impartial hearing officer to preside at
the hearing or serve as the hearing officer himself/herself. The hearing
officer may be an employee of the state agency, or a policy advisory council
member and the hearing officer may be, but is not required to be, an attorney
at law. The hearing officer shall have authority to administer oaths, rule on
parties' motions, determine the admissibility of evidence, recess any hearing
from time to time, and rule on such other procedural motions as may be
presented by any of the parties.
(2) Rules of evidence:
(a) Only relevant and material evidence will
be allowed. Evidence will also be allowed if it is of a type commonly relied
upon by reasonably prudent persons in the conduct of their affairs. Objections
to evidence will be noted in the record.
(b) 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.
(c) If a hearing will be expedited and the
interests of the parties will not be prejudiced substantially, any part of the
evidence may be received in written form prior to the hearing, or the parties
may stipulate as to facts or circumstances, or the parties may summarize facts
or circumstances.
(d) Either party
may conduct cross-examinations to obtain a full and true disclosure of the
facts.
(e) The hearing officer may
take official notice of generally recognized facts within the area of the state
agency's or area agency's specialized knowledge. The hearing officer shall
inform the parties of the facts officially noticed either before or during the
hearing, or and shall afford the parties an opportunity to contest the facts
officially noticed. The special skills or knowledge of the state agency or area
agency and their staff may be used in evaluating the evidence.
(f) 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 the ruling at the time
any ruling is made or sought.
F. Oral hearing: When an oral hearing is
conducted, the hearing officer will provide that:
(1) 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 all the parties' presentations 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 subject to the no additional evidence limitation; and
(2) the hearing shall be completed within one
hundred twenty (120) days of the date the request for hearing was received by
the state agency.
G.
Recording an oral hearing: Any 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. The requesting party shall
select and pay for the services of a reporter. A transcription becomes official
when 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 state agency before the
hearing;
(5) the state agency'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 present a
recommendation for the final decision to the director within ten (10) working
[days] following the administrative or oral hearing.
(2) The director shall issue a final decision
based on the hearing officer's recommendation and on the record. The director
shall not substitute his/her judgment for that of the area agency as to the
weight of the evidence on matters committed to the area agency's discretion.
The director shall affirm the action heard unless it is unlawful, arbitrary or
not reasonably supported by substantial evidence in the record.
(3) The director shall render a final
decision within ten (10) days after close of the hearing. The director shall
send a copy of the final decision to all parties by registered or certified
mail, return receipt requested, within five days after it is
rendered.
