(1) The Agency
shall provide the manager an opportunity to seek remedy for his/her
dissatisfaction with Agency action arising from the operation or administration
of TBE through an evidentiary fair hearing. The manager or a representative
selected by the manager shall request an evidentiary fair hearing in writing
within thirty (30) days of the agency's action from which the grievance arises
or within fifteen (15) days following the manager's receipt of a decision
issued by the director of services for the Blind Division pursuant to rule
1240-6-11-.01. All rules on file pertaining to the Department's procedures for
conducting fair hearings will apply to the request for a fair TBE
hearing.
(2) A request for an
evidentiary fair hearing, filed by the manager, or a representative selected by
the manager, shall be made to the Agency on an official appeals form and shall
be completed and signed by the manager or his/her representative.
(a) The request shall be sent to the Agency
office in which the manager is supervised. A copy of the request shall be sent
to the manager's representative on the Committee of Blind Vendors.
(3) The evidentiary fair hearing
shall be conducted in accordance with the following:
(a) Time and Place of Hearing - A fair
hearing shall be held in the state office at a time and place convenient to the
manager.
(b) Notice of Fair Hearing
- A notice of hearing shall be given to the licensee at least fifteen (15)
working days prior to the date set for the hearing.
(c) Maximum Time Limit - The overall time
limit for processing a fair hearing is ninety days, except when a hearing is
delayed for:
1. Illness of the manager,
or
2. Delay in obtaining evidence
because of circumstances beyond the control of the manager or the Agency. The
time limit applies to the period extending from the date the original request
is received by the Agency until the date of the decision.
(d) Hearing Officer - An administrative judge
shall be an impartial official, assigned by the Commissioner or his/her
designated representative, to serve as hearing officer.
(e) Right of Counsel - The licensee is
entitled to legal counsel or other representation. Such counsel shall be at
his/her own expense or he may wish to avail himself of any legal services
available in the community at little or no cost.
(f) Issuance of Subpoenas - Subpoenas shall
be issued in accordance with the state rules governing the Department of Human
Services Administrative Procedures Division.
(g) Rules of Evidence - The administrative
judge shall exercise every reasonable effort to obtain the most credible
evidence of fact in the case.
(h)
Presentation of Case - The party shall be given every opportunity to present
his/her case, examine and cross-examine witnesses, present argument and rebut
evidence.
(i) Transcript - A
transcript shall be made of the oral evidence and shall be made available to
the parties upon request. The Agency shall pay all transcript costs and other
costs associated with the conduct of the hearing.
(j) Content of Record - The transcript of
testimony, exhibits, and all papers, and documents filed in the hearing shall
constitute the exclusive record for decision.
(k) Initial Order - An Initial Order shall be
issued by the hearing officer in accordance with state law and state rules
governing the Department of Human Services Administrative Procedures
Division.
(l) Notice of Right to a
Petition for Reconsideration and/or Appeal of the Initial Order - Written
notice of the right to petition for reconsideration and/or appeal is to
accompany the Initial Order mailed to the parties. A petition for appeal of an
Initial Order must be filed with the Commissioner of the Department of Human
Services or his/her designated representative within fifteen (15) days after
entry of an Initial Order. Also, any party, within fifteen (15) days after
entry of an Initial Order, may file a petition for reconsideration with the
hearing officer stating the specific grounds upon which relief is requested. If
an Initial Order is subject to both a timely petition for reconsideration and
appeal, the petition for reconsideration shall be disposed of first; and a new
fifteen (15) day period shall start to run upon disposition of the petition for
reconsideration.
(m) Final Order -
The Commissioner of the Department of Human Services will review the facts of
the case and the Initial Order that has been entered and enter the Final Order
in the case.
(n) Notice of Right to
a Petition for Reconsideration of a Final Order - Written notice of the right
to petition for reconsideration of the Final Order is to accompany the Final
Order to the parties. Any party who feels aggrieved by a Final Order, may
within fifteen (15) days following the date of the Order, file a written
petition for reconsideration which shall specify in detail the reasons for the
request.
(o) Pursuant to T.C.A.
§
71-4-508(a), the
Agency shall have sole jurisdiction to provide administrative review or an
evidentiary hearing to a licensed manager.
(4) Pursuant to T.C.A. §
71-4-508(c), the
State of Tennessee does not waive its sovereign immunity under the Eleventh
Amendment of the U.S. Constitution or the Constitution of the State of
Tennessee.
