Rules & Regulations of the State of Tennessee
Title 1240 - Human Services
Subtitle 1240-05 - Administrative Procedures Division
Chapter 1240-05-13 - Child Care Agency Board of Review
Section 1240-05-13-.05 - HEARING PROCEDURES
Universal Citation: TN Comp Rules and Regs 1240-05-13-.05
Current through September 24, 2024
(1) Hearing Dates, Continuances and Substitute Administrative Law Judge.
(a) Hearing Date and Continuances.
1. The hearing for a timely filed appeal
regarding the denial, revocation, or other restriction or limitation of a child
care agency license imposed by the Department, other than the summary
suspension of the license or the placement of a child care agency on probation
by the Department, shall be heard by the Board of Review within thirty (30)
days of the date of service of the notice of denial, revocation, restriction or
limitation, unless, for good cause, the hearing date is continued. Summary
suspensions of licenses shall be heard as provided in the rules or procedures
of the Department.
2. A hearing
regarding the imposition of a civil penalty imposed by the Department of Human
Services shall be heard within ninety (90) days of the notice of the penalty
unless, for good cause shown, the hearing date is continued. The Department
shall not attempt recovery of a civil penalty until the time for appeal has
expired, or, if appealed, the appeal process before the Board, has been
exhausted.
3. For good cause as
stated in an order entered on the record, the Board or the Administrative Law
Judge may continue a hearing. Prior to a case being heard by the Board, the
Administrative Law Judge may issue a continuance order. In order to protect the
children in the care of the agency from any risk posed to their health, safety
and welfare, the Board or Administrative Law Judge shall re-set the hearing at
the earliest date that circumstances permit.
(b) Substitute Administrative Law Judges.
1. Substitute Administrative Law Judges in
Department of Human Services Cases.
(i) If the
Administrative Procedures Division of the Office of the Secretary of State
certifies by letter to the Recording Secretary of the Board that the Division's
contested case docket prevents the scheduling of a hearing before the Board
within the initial timeframes set forth in this chapter regarding the appeal of
the denial or revocation, or restriction or other limitation of a license,
other than a summary suspension of license, or for the review of a civil
penalty imposed by the Department of Human Services, then the Department of
Human Services shall have the authority to obtain an attorney who shall act as
the Administrative Law Judge to conduct the proceedings before the Board. The
substitute Administrative Law Judge may be obtained by contract with a private
attorney or by contract or agreement with another state agency.
(ii) The substitute Administrative Law Judge
shall have the same authority as an Administrative Law Judge of the Department
of State. The hearing may be continued by order of the Board for the purpose of
obtaining a substitute Administrative Law Judge. The continuance order in such
case may be entered by the Board, the panel Chair, or the Vice-Chair of the
Board.
2. Substitute
Administrative Law Judges in Department of Children's Services Cases.
(i) If the Administrative Procedures Division
of the Office of the Secretary of State certifies by letter to the Recording
Secretary of the Board that the Division's contested case docket prevents the
scheduling of a hearing before the Board within the initial timeframes set
forth in this chapter regarding the appeal of the denial or revocation, or
restriction or other limitation of a license, other than a summary suspension
of license, then the Department of Children's Services shall have authority to
appoint a Hearing Officer from the Department to conduct the proceedings before
the Board.
(ii) The substitute
hearing officer shall have the same authority as an Administrative Law Judge of
the Department of State. The hearing may be continued by order of the Board for
the purpose of obtaining a substitute Hearing Officer. The continuance order in
such case may be entered by the Board or panel chair of the Vice-Chair of the
Board.
(2) If timely appeal was made to the appropriate Department, then, pending the hearing upon the denial or revocation of a license, the child care agency may continue to operate prior to the decision of the Board or panel unless the license is summarily suspended as provided by the rules of the appropriate Department.
(3) A summary suspension order entered by the appropriate Department may be lifted or modified by that Department following its entry by that Department before or after a case is docketed without further approval of the Board or panel.
(4) After a case is docketed and prior to a hearing before the Board, any settlement or dismissal of the case involving the denial, revocation, restriction or other limitation of a license other than a summary suspension, or, any settlement or dismissal involving the imposition of a civil penalty by the Department of Human Services, shall be approved by an order of the Board Chair or panel Chair, or in the Chair's absence or inability to act, by the Vice-Chair of the Board, or, in the absence or inability to act by the panel Chair, then by the Board Chair or Vice-Chair. Prior to approval, the Chair or Vice-Chair shall poll members of the Board or panel to determine if there is agreement of the Board members regarding approval of the settlement or dismissal and the Recording Secretary or designee shall maintain a record of the discussion and vote as required by T.C.A. §§ 4-5-312 and 4-5-319.
(5) Hearing procedures.
(a) Hearings shall be conducted pursuant to
the provisions of the Administrative Procedures Act in Title 4, Chapter 5, Part
3, of the Tennessee Code Annotated, and a record of the proceedings shall be
maintained as required by T.C.A. §
4-5-319.
(b) Any party may be represented by counsel
of the party's choice.
(c) Hearing
testimony may be taken by telephone in a manner that allows all parties present
to hear the testimony, if approved by the hearing official.
(d) Decisions of the Board shall be based
upon a majority vote of the Board or panel members present and shall be based
upon a preponderance of the evidence. The decisions shall be based upon a
consideration of the seriousness of the violations of the licensing regulations
by the child care agency, the effect of the violations on the care of children
by the child care agency, the relevant history of violations of licensing
regulations by the agency and the relevant history of the agency's ability to
maintain compliance, the corrective measures taken by the child care agency to
remedy the violations, and the willingness and ability of the licensee to
correct any violations or to maintain compliance with the Department's
regulations.
(e) Content of Board
Orders, Entry, Filing and Record of Board Orders.
1. An order of the Board or panel shall
include conclusions of law, the policy reasons therefor, and findings of fact
for all aspects of the order, including the remedy prescribed and, if
applicable, the action taken on a petition for stay of effectiveness of the
Board's or panel's order. Findings of fact, if set forth in language that is no
more than mere repetition or paraphrase of the relevant provision of law, shall
be accompanied by a concise and explicit statement of the underlying facts of
record to support the findings, and a reference, if appropriate, to the
exhibits entered in the case.
2.
The final order, initial order or decision must also include a statement of the
available procedures and the time limits for seeking reconsideration or other
administrative relief and the time limits for seeking judicial review of the
final order. An initial order or decision shall include a statement of any
circumstances under which the initial order or decision may, without further
notice, become a final order.
3.
Any orders resulting from hearings before the Board or a panel of the Board
shall be prepared by the party designated by the Board or panel and shall be
signed by the Board or panel Chair, or Vice-Chair of the Board in the absence
or inability of the Board Chair to act, or by the Board Chair or Vice-Chair in
the absence or inability of the panel Chair to act. The orders shall be
delivered to the Recording Secretary following signature and shall be filed by
the Recording Secretary with the Administrative Procedures Division of the
Office of the Secretary of State within five (5) business days following
signature by the appropriate Chair. Copies of the signed orders shall be
provided by the Recording Secretary to all parties.
4. The Recording Secretary shall maintain
copies of all orders in the records of the Board.
Authority: T.C.A. §§ 4-5-201 et seq.; 71-1-105; 71-3-501 et seq.; Acts 2000, ch. 981, §§ 11 and 14.
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