Section 7227.2 - Full Evidentiary Hearing(a) Licensees or vendors who are dissatisfied with an action of the Department arising from licensing, selection as a vendor, termination or suspension of a license or vendor operating agreement, probation, or administration of the BEP may request a full evidentiary hearing before a hearing officer. All requests for a full evidentiary hearing shall: (1) Be made within 30 working days of the action with which the licensee or vendor is dissatisfied, or within the time frame specified in Section 7227.1(e) of these regulations, if the licensee or vendor elected to participate in the administrative review process. In cases involving the suspension or termination of licensure or probation, the date of the action shall be deemed to be two days after the date the Department mails the written notice of proposed action specified in Section 7213.1 of these regulations.(2) Be made in writing to the Department's Legal Affairs Office.(3) Be date stamped by the Department's Legal Affairs Office upon receipt when the postmark is illegible or the request is personally delivered.(b) The licensee or vendor shall be notified of: (1) The time and place of the hearing, which shall be accessible to both the hearing officer and the licensee or vendor and at a geographical location convenient to the licensee or vendor.(2) The hearing procedures, including but not limited to:(A) The circumstances under which a continuance may be granted.(B) The opportunity to be represented by an authorized representative of the licensee's or vendor's choosing.(C) The necessity of confirming attendance at the scheduled hearing.(c) Any party or the hearing officer may request a continuance of the full evidentiary hearing which may be granted at the discretion of the hearing officer. A continuance shall be granted only if good cause exists and shall not extend the date of the full evidentiary hearing for more than 20 calendar days from the original hearing date. The hearing officer shall give written notice of any continuance to all parties. The notice of continuance for good cause shall include the grounds upon which the continuance was granted. For purposes of this subsection, good cause includes, but is not limited to, the following:(1) Death of a family member of a party or authorized representative. For the purposes of this section family member shall include, but is not limited to, spouse or domestic partner.(2) Illness of a party or authorized representative.(3) Unavoidable conflicts in schedules that are beyond the control of a person essential to the full evidentiary hearing.(4) Unavailability of a witness or evidence, the absence of which would result in prejudice to the licensee or vendor.(d) The hearing officer shall voluntarily disqualify him or herself from hearing a case in which he or she cannot accord a fair and impartial consideration. Any party may request a disqualification of the hearing officer by filing an affidavit prior to the taking of evidence at the hearing, stating with particularity the grounds by which it is believed a fair and impartial hearing may not take place. Within five working days of the filing of the affidavit, the issue shall be decided by the Director or Chief Deputy Director and a new full evidentiary hearing scheduled.(e) Except for properly granted continuances, the licensee or vendor shall be given one opportunity to appear at a scheduled hearing. Failure to appear occurs when the licensee or vendor is more than thirty minutes late for a hearing without good cause, as determined by the hearing officer, or has failed to give the hearing officer at least twenty-four hours notice of intent not to appear. Failure of an authorized representative to appear shall not constitute failure of the licensee or vendor to appear, provided the licensee or vendor agrees that the full evidentiary hearing shall proceed in the absence of the authorized representative. Upon the licensee's or vendor's failure to appear at a scheduled full evidentiary hearing, the hearing officer shall immediately send, by certified mail, to the licensee or vendor and the authorized representative, if any, a notice stating that the opportunity to appear has been exhausted and that a request to reschedule the full evidentiary hearing for good cause must be received by the Department within ten working days. If a response is not received within the required period, the hearing officer shall inform the Director who may dismiss the appeal with prejudice. If the request to reschedule is received within the required period and the hearing officer finds good cause has been shown, the full evidentiary hearing shall be rescheduled within 20 calendar days of receipt of the showing of good cause.(f) The rules governing the full evidentiary hearing shall be as follows:(1) The hearing officer shall receive all relevant evidence as specified in Government Code Section 11513(c).(2) All testimony shall be under oath or affirmation. The hearing officer is hereby empowered to administer such oath or affirmation.(3) The licensee or vendor may appear alone, with an authorized representative, or be represented by an authorized representative.(4) The Department may be represented by the BEP Manager or staff, legal counsel, or any other person designated by the Department.(5) All parties shall be allowed to call witnesses and to submit any relevant evidence.(6) All parties shall be allowed to confront and question adverse witnesses.(7) If it appears to the hearing officer that additional evidence not produced at the hearing is necessary for a full and fair hearing, he/she may order any of the following:(A) A continuance of the hearing to take the additional evidence.(B) That the record be left open to allow a party to submit written evidence not produced at the hearing. The other party shall be given an opportunity to respond to the new evidence and may request the hearing officer to reconvene the full evidentiary hearing if that is necessary for a fair response. The hearing officer shall determine whether or not reconvening is justified or if the record will be closed after he or she reevaluates the record.(C) All documents submitted under (A) and (B) above shall be served upon both the hearing officer and the other party or parties.(8) If the parties reach a settlement agreement prior to the record in the full evidentiary hearing being closed, the written settlement agreement executed by the parties shall be submitted to the Director who may issue the final decision in conformity therewith. If the Director does not issue a final decision in conformity therewith, the matter shall be remanded to the hearing officer for a full evidentiary hearing.(9) The hearing officer shall prepare and submit to the Director a proposed decision within fifteen calendar days from the date the hearing record is closed. The hearing officer shall mail a copy of the proposed decision to the licensee or vendor and authorized representative, if any, at the time of submission to the Director. The proposed decision shall include at a minimum the following: (B) The findings of fact.(C) The reasons for the proposed decision referencing applicable laws, regulations and policy.(10) Within 15 calendar days from receipt of the proposed decision from the hearing officer, the Director shall review the proposed decision based upon the standards specified in paragraph (11) of this section and take one of the following actions: (A) Adopt the proposed decision in its entirety as the final decision.(B) Decide an additional review is necessary to either: 1. Modify the proposed decision.2. Reject the proposed decision and decide the matter on the basis of the record with or without additional evidence.(11) The following standards of review shall be applied by the Director when reviewing each proposed decision rendered by the hearing officer. The proposed decision shall be adequately supported by: (A) The sufficiency of the evidence.(B) The findings of fact.(C) Applicable state and federal laws and regulations.(12) If the Director chooses to conduct an additional review of the proposed decision, he or she shall provide notice of the intent to review to all parties within the time limit specified in paragraph (10) of this section and may do either of the following: (A) Resubmit the matter to the hearing officer for the taking of additional evidence in accordance with paragraph (7) of this section. In this instance the Director shall render a final decision within 15 calendar days of the receipt of the additional evidence.(B) Modify the proposed decision or reject the proposed decision on the basis of the record without additional evidence. In this instance, the Director shall render a final decision within 15 calendar days of having provided notice of his or her intent to review the proposed decision.(13) The Director shall base the final decision upon careful consideration of: (B) The findings of fact.(C) Applicable law, regulation and policy.(D) Any new evidence submitted by the licensee or vendor or authorized representative in conjunction with the Department's written response or rebuttal to the new evidence.(14) The final decision shall be sent to the licensee or vendor and the authorized representative, if any, by certified mail within five working days of the decision being adopted by the Director. An explanation of the licensee's or vendor's right to file a complaint with the Secretary shall be mailed with the final decision.(g) The record of the hearing shall consist of the decision resulting from the administrative review, if that process was undertaken prior to the full evidentiary hearing, the proposed decision, the final decision, a transcript or recording of the hearing, and all exhibits, papers and reports filed in the proceeding. If requested by the licensee or vendor or the authorized representative, the record of the hearing or any part thereof shall be furnished to him or her within 30 calendar days from receipt of a written request at a cost not to exceed ten cents per page or for free if fewer than ten pages are requested.(h) If a licensee or vendor is dissatisfied with the decision made after a full evidentiary hearing he or she may request that an arbitration panel be convened by filing a complaint with the Secretary of the United States Department of Education pursuant to 20 United States Code section 107d-1(a).Cal. Code Regs. Tit. 9, § 7227.2
1. New section filed 2-4-93; operative 3-8-93 (Register 93, No. 6).
2. Amendment of section and NOTE filed 9-22-2009; operative upon the approval of the Secretary of the United States Department of Education, in accordance with title 34, Code of Federal Regulations, section 395.4(a) (Register 2009, No. 39).
3. Approved by the Secretary of the United States Department of Education in accordance with section 395.4(a) of title 34 of the Code of Federal Regulations on 6-2-2010; operative 9-15-2010 pursuant to section 7210(b)(2) of title 9 of the California Code of Regulations (Register 2010, No. 39).
4. Change without regulatory effect redesignating subsections (c)-(i) as subsections (b)-(h) and amending newly designated subsection (f)(13)(D) filed 1-14-2014 pursuant to section 100, title 1, California Code of Regulations (Register 2014, No. 3). Note: Authority cited: 20 USC Section 107b(5); 34 CFR Section 395.4; and Sections 19006, 19016 and 19639, Welfare and Institutions Code. Reference: 20 USC 107b(5), 107b(6), 107d-1 and 107d-2; 34 CFR Section 395.13; and Section 19635, Welfare and Institutions Code.
1. New section filed 2-4-93; operative 3-8-93 (Register 93, No. 6).
2. Amendment of section and Note filed 9-22-2009; operative upon the approval of the Secretary of the United States Department of Education, in accordance with title 34, Code of Federal Regulations, section 395.4(a) (Register 2009, No. 39).
3. Approved by the Secretary of the United States Department of Education in accordance with section 395.4(a) of title 34 of the Code of Federal Regulations on 6-2-2010; operative 9-15-2010 pursuant to section 7210(b)(2) of title 9 of the California Code of Regulations (Register 2010, No. 39).
4. Change without regulatory effect redesignating subsections (c)-(i) as subsections (b)-(h) and amending newly designated subsection (f)(13)(D) filed 1-14-2014 pursuant to section 100, title 1, California Code of Regulations (Register 2014, No. 3).