La. Admin. Code tit. 48 § IX-921

Current through Register Vol. 50, No. 9, September 20, 2024

Section IX-921 - Appeal Process

A. A CMA who has had privileges suspended or has been decertified has the right of appeal.

B. Notice of Violations. When there are substantiated charges against the CMA, either through oral or written evidence, the OCDD will notify the individual(s) implicated in the investigation of the following information by certified mail:

1. the nature of the violations, and the time and date of each occurrence;

2. the state's intent to report these violations to the CMA registry; and

3. The right to request an informal discussion and/or the right to an administrative hearing.

C. Right To An Informal Discussion. When a CMA feels that he/she has been wrongly accused, the following procedure should be followed:

1. Within 15 calendar days of the receipt of the office's notice of violation, the CMA may request an informal discussion.

2. Such request must be made to the office in writing. A meeting will be arranged within 20 days of such a request. The informal discussion is designed to provide an opportunity for:

a. the CMA to informally review the situation;

b. the agency to offer alternatives based on corrections or clarifications, if any; and

c. the CMA to evaluate the necessity for seeking an administrative hearing;

3. During this informal discussion, the CMA will be afforded the opportunity to talk with office personnel involved in the situation, to review pertinent documents on which the alleged violation is based, to ask questions, to seek clarifications, and to provide additional information.

D. Right To Request Administrative Hearing

1. Within 30 calendar days after the receipt of notice of the office's notice of violation or the notice of results of informal discussion, the CMA may request an administrative hearing. Such request must be in writing to the: Office of the Secretary, Attention: Bureau of Appeals. The request must contain a statement setting forth the specific charges with which he/she disagrees, and the reasons for this disagreement.

2. Unless a timely and proper request is received by the appeals section, the findings of the OCDD shall be considered a final and binding administrative determination. Notification will then be entered to the CMA registry.

E. Basic Provisions. The administrative hearing shall be conducted in accordance with the Louisiana Administrative Procedure Act, R.S. 49:965 et seq., and the provisions set forth in the procedures described therein.

F. Right to Counsel. Any party may appear and be heard at any appeals proceeding through an attorney at law or through a designated representative.

G. Appearance In Representative Capacity

1. A person appearing in a representative capacity shall file a written notice of appearance on behalf of a provider:

a. identifying himself by name, address and telephone number; and

b. identifying the party represented; and

2. Such person shall have a written authorization to appear on behalf of the provider.

H. Preliminary Conference

1. Although not specifically required, the appeals bureau may schedule a preliminary conference. The purposes of the preliminary conference include but are not limited to the following:

a. clarification, formulations and simplification of issues;

b. resolution of matters in controversy;

c. exchange of documents and information;

d. stipulations of fact so as to avoid unnecessary introduction of evidence at the formal review;

e. the identification of witnesses; and

f. such other matters as may aid disposition of the issues.

2. When the appeals bureau schedules a preliminary conference, it shall notify all parties in writing. The notice shall direct any parties and their attorneys to appear at a specified date, time, and place.

I. Results of Preliminary Conference

1. Where the preliminary conference resolves all or some matters in controversy, a summary of the findings agreed to at the conference shall be provided by the administrative law judge.

2. Where the preliminary conference does not resolve all matters in controversy, an administrative hearing shall be scheduled on those matters still in controversy. The hearing shall be scheduled within 30 calendar days following the completion of the preliminary conference, or at a time mutually convenient to all parties.

J. Notice of Administrative Hearing. When an administrative hearing is scheduled, the appeals bureau shall notify the CMA and/or his representative and the office representative, in writing of the date, time and place of the hearing. Notice shall be mailed not less than 10 calendar days before the scheduled date of the hearing.

K. Conduct of Hearing

1. The hearing shall be conducted by the administrative law judge from the appeals bureau.

2. Testimony shall be taken only on oath, affirmation, or penalty of perjury.

3. Each party shall have the right to call and examine parties and witnesses; to introduce exhibits; to question opposing witnesses and parties on any matter relevant to the issue even though the matter was not covered in the direct examination; to impeach any witness regardless of which party first called him to testify; and to rebut the evidence against him.

4. Any relevant evidence shall be admitted if it is the sort of evidence on which responsible persons are accustomed to rely in the conduce of serious affairs regardless of the existence of any common law or statutory rule which might make improper the admission of such evidence over objection in civil or criminal actions. Documentary evidence may be received in the form of copies or excerpts.

5. The administrative law judge may question any party or witness and may admit any relevant and material evidence.

6. The administrative law judge shall control the taking of evidence in a manner best suited to ascertain the facts and safeguard the rights of the parties. Prior to taking evidence, the administrative law judge shall explain the issues and the order in which evidence will be received.

7. A party has the burden of proving whatever facts it must establish to sustain its position.

8. The burden of producing evidence to substantiate the written charge(s) will be on the provider of services. Once the burden of producing evidence to substantiate the charges has been met, the CMA and/or his representative shall have the burden of producing evidence answering the charges.

L. Witnesses and Subpoena

1. Each party shall arrange for the presence of their witnesses at the hearing.

2. A subpoena to compel the attendance of a witness may be issued by the administrative law judge upon written request by a party and a showing of the need therefor.

3. A subpoena may be issued by the administrative law judge on his own motion.

4. An application for subpoena duces tecum for the production by a witness of books, papers, correspondence, memoranda, or other records shall be made in writing to the administrative law judge, giving the name and address of the person or entity upon whom the subpoena is to be served. The application shall precisely describe the material that is desired to be produced and shall state the materiality thereof to the issue involved in the proceeding. It shall also include a statement that, to the best of the applicant's knowledge, the witness has such items in his possession or under his control.

M. Continuance of Further Hearings

1. The administrative law judge may continue a hearing to another time or place, or order a further hearing on his own motion of upon showing of good cause, at the request of any party.

2. Where the administrative law judge determines that additional evidence is necessary for the proper determination of the case, he may at his discretion:

a. continue the hearing to a later date and order the party to produce additional evidence; or

b. close the hearing and hold the record open in order to permit the introduction of additional documentary evidence. Any evidence so submitted shall be made available to both parties and each party shall have the opportunity for rebuttal.

3. Written notice of the time and place of a continued or further hearing shall be given except that when a continuance of further hearing is ordered during a hearing, oral notice of the time and place of the hearing may be given to each party present at the hearing.

N. Record of Hearing. A sound recording of the hearing shall be made. A transcript will be prepared and reproduced at the request of a party to the hearing provided he bears the cost of the copy of the transcript.

O. Decision

1. At the conclusion of the hearing, the administrative law judge shall take the matter under submission.

2. The administrative law judge shall prepare a written proposed decision which will contain findings of fact, a determination of the issues presented, a citation of applicable policy and regulations, and an order.

3. The appeals bureau, on behalf of the secretary of the DHH, may adopt the proposed decision or may reject it based upon the record, or it may be remanded to the administrative law judge to take additional evidence. In the latter case, the administrative law judge thereafter shall submit a new proposed decision.

4. The decision shall be final and binding upon adoption on behalf of the secretary, subject only to judicial review by the courts. Copies of the decision shall be mailed to the CMA at his last known address and to any representative thereof.

P. Failure to Appear

1. If a CMA fails to appear at a hearing, a decision may be issued by the appeals bureau dismissing the hearing. A copy of the decision shall be mailed to each party.

2. Any dismissal may be rescinded upon order of the appeals bureau if the CMA makes written application within 10 calendar days after the mailing of the dismissal, and provides evidence of good cause for his failure to appear at the hearing.

La. Admin. Code tit. 48, § IX-921

Promulgated by the Department of Health and Hospitals, Office for Citizens with Developmental Disabilities, LR 21:697 (July 1995).

AUTHORITY NOTE: Promulgated in accordance with R.S. 37:1021-1025.