Okla. Admin. Code § 340:2-5-44

Current through Vol. 42, No. 7, December 16, 2024

Section 340:2-5-44 - Procedures relating to grantee hearings

(a)General provisions. The rules in this Section apply to any hearing to be scheduled by the Appeals Unit, and voted on by the Appeals Committee. Once the grantee/applicant has requested a hearing before the Department, the hearing is not delayed or cancelled for any reason other than:

(1) Withdrawal, in writing;

(2) Abandonment of the request by the grantee; or

(3) Evidence by the grantee of good cause for delay of the hearing (see (f)(1)(F) of this Section for good cause).

(b)Request for a hearing. The Aging Services Division or the Area Agency on Aging is responsible for assisting the grantee/applicant in completing OAC 340:2 Appendix G, Request for Fair Hearing, after the written request is received. The Appendix G is signed by the grantee/applicant. The Aging Services Division is responsible for transmitting the OAC 340:2 Appendix G to the Appeals Unit not later than the first working day following the date of the grantee/applicant's signature.

(c)Hearing officers. The professional staff member of the Appeals Unit who conducts a fair hearing is a person who has not had a part in the protested decision. This person is one who has been designated by the State Director to conduct the fair hearing and may either be an Administrative Hearing Officer (AHO) or an Administrative Law Judge (ALJ). The AHO or ALJ is responsible for preparing a written summary of the testimony and written evidence presented in the hearing for presentation to the Appeals Committee.

(1) If the ALJ or AHO who conducts the hearing concludes that the Department (Aging Services Division) or the Area Agency on Aging acted correctly in taking the adverse action, a decision letter will be issued within 90 days of the appellant's written request for a hearing.

(2) The following situations will be addressed by the ALJ or AHO:

(A) Requests for hearing will be dismissed if not submitted by the appellant within 30 days of the notice of adverse action.

(B) If the appellant or authorized representative fails to establish "good cause" for failure to appear (see (f)(1)(F) of this Section), the AHO/ALJ will issue a decision letter dismissing appellant's request for hearing and upholding the original decision of the Aging Services Division or Area Agency on Aging.

(C) If the appellant or authorized representative files a request for a hearing and subsequently files a written withdrawal before a final decision is rendered, the request for hearing is dismissed.

(D) At the pre-hearing conference or hearing, the AHO/ALJ may determine that additional evidence is needed before a decision can be made. If so, the AHO/ALJ may continue the hearing or remand the case to the Aging Services Division or affected Area Agency on Aging for reconsideration or inclusion of additional evidence before proceeding with the hearing.

(d)Responsibilities of Aging Services Division or affected Area Agency on Aging. The Aging Services Division or the affected Area Agency on Aging shall be responsible for assisting the appellant with whatever help is needed/wanted in requesting a fair hearing from the Department. Further, the Aging Services Division or the affected Area Agency on Aging shall:

(1) Prepare a written summary of the adverse action in question to include:

(A) Type of decision or action on the part of the Aging Services Division or the Area Agency on Aging;

(B) Nature of appellant's complaint;

(C) Point at issue - exactly what the grantee or applicant is appealing;

(D) Chronological summary of pertinent events and evidence leading to the action;

(E) Verbatim quotations from the State Title III Policies and Procedures Manual, the Area Agency on Aging Title III Policies and Procedures Manual, or the 16(B)2 Policies and Procedures Manual, as appropriate, regarding the policy on which the adverse action was based; and

(F) Evidence and pertinent documents supporting the action of the Department (Aging Services Division) or the Area Agency on Aging.

(2) Provide a copy of the summary to the appellant and the hearing officer at least eight days prior to the scheduled hearing; and

(3) Notify the appellant, in writing, of the following procedures relating to the hearing:

(A) That the request for hearing received by the Department (Aging Services Division) or the Area Agency on Aging will be sent to the Appeals Unit and that the Appeals Unit will mail a letter to the appellant outlining the date, time and place of the hearing;

(B) That prior to the scheduled hearing, the appellant will receive a copy of the Aging Services Division's or the Area Agency on Aging's written summary regarding the adverse action in question, as well as documents and records the Department (Aging Services Division) or Area Agency on Aging will present at the hearing;

(C) That testimony given by the appellant, the appellant's witnesses, and the Department (Aging Services Division) or Area Agency on Aging will be taken by a hearing officer from the Appeals Unit of the Department;

(D) That a recording of the testimony will be made; and

(E) That the appellant will receive a written decision from the Appeals Unit.

(e)Withdrawal of request for hearing. If at any time following the formal request for a hearing, the appellant decides to withdraw the request for hearing, the Department (Aging Services Division) or the Area Agency on Aging shall advise the grantee or applicant of their responsibility to submit their withdrawal in writing to the Department (Aging Services Division) or the affected Area Agency on Aging, as appropriate. It will be the responsibility of the Department (Aging Services Division) or the Area Agency on Aging to receive the written withdrawal and to submit the withdrawal to the Appeals Unit of the Department within one working day of receipt. If the appellant refuses to submit the withdrawal of request for hearing in writing, the Aging Services Division or the Area Agency on Aging, as appropriate, shall prepare a memo outlining the reason(s) for the appellant's refusal to submit a written withdrawal and submit the memo to the Appeals Unit of the Department. In such instances, the Appeals Unit will advise the appellant by letter of the Department's action.

(f)Scheduling of the hearing. Upon receipt of OAC 340:2 Appendix G, Request for Fair Hearing, by the Appeals Unit, the request is registered and the Appeals Unit supervisor assigns the request to a hearing officer within the unit and sets a date for the hearing. The Unit then mails the appellant an appointment letter (Form H-S-6). Copies of this notification are routed to the Aging Services Division and the affected Area Agency on Aging, as appropriate. The notification is mailed not less than eight days prior to the date set for the hearing. The following procedures are followed related to the appellant's notification of the hearing:

(1) The letter to the appellant from the Appeals Unit includes:

(A) The name of the hearing officer who will conduct the hearing;

(B) The date, time, and location of the hearing;

(C) A request that the appellant have ready at the time of the hearing any evidence the appellant wishes to present;

(D) A statement of the appellant's right to have witnesses attend the hearing to give testimony;

(E) A statement of the appellant's (or the appellant's authorized representative) right to access all documents and records to be used by the agency at the hearing at a reasonable time prior to the date of the hearing, as well as during the hearing.

(F) A statement that failure to appear at the scheduled hearing without "good cause" will result in dismissal of the hearing request. Good cause may be established for any of the following reasons:

(i) Death in the family of any individual considered by the appellant to be critical to the hearing process, e.g., the project director, board chairman, legal representative;

(ii) Personal injury or illness of any individual critical to the hearing process which reasonably prevents such individual from attending the hearing;

(iii) Court subpoena; or

(iv) Sudden and unexpected emergencies.

(G) An explanation of how consideration of "good cause" can be requested; and

(H) An invitation for the individual to raise any questions regarding the information in the letter with the name, address, and telephone number of the Aging Services Division or the Area Agency on Aging responsible for the action being appealed.

(2) The Aging Services Division or affected Area Agency on Aging submits its written testimony to the Appeals Unit which is entered into the official record of the hearing;

(g)Conduct of hearing. All hearings scheduled by the Appeals Unit are conducted by one of the hearing officers assigned to that unit. The hearing is closed to the public. Persons permitted to attend the hearing in addition to the hearing officer, representatives of the appellant grantee/applicant, Aging Services Division staff and/or affected Area Agency on Aging staff, are those persons invited by these parties or authorized by the State Director as representatives or witnesses. The hearing proceedings include:

(1) A pre-hearing conference conducted by the hearing officer prior to the formal beginning of each hearing of record. The purpose of the pre-hearing conference is to organize the hearing process. It provides an opportunity for all parties to identify witnesses, identify all exhibits including those exhibits brought to the hearing. (All witnesses and exhibits introduced during the pre-hearing conference are to be specifically identified on the record during the actual hearing.)

(2) An oath administered by the hearing officer to the appellant, representatives of the appellant, the State Agency on Aging staff (or to Area Agency on Aging staff, as appropriate), and to witnesses. (The form used for the oath consists of: "Do you solemnly swear (or affirm) that the evidence you give in this case will be the truth, the whole truth, and nothing but the truth.")

(3) In hearings in which a party is assisted by an interpreter, an oath administered by the hearing officer to the interpreter. (The form used for the oath consists of: "Do you solemnly swear (or affirm) that you will truthfully translate from English into (state the other language) the questions about to be asked, and from (state the other language) into English the answers about to be given in the case to the best of your ability.")

(h)Recording of the hearing proceedings. The hearing officer is responsible for arranging for a verbatim record of the proceedings of the hearing. The hearing officer's record of the hearing is the official record. However, a representative of the appellant can provide his/her own recording device for use during the hearing, if desired. Any party may request a copy of the tape recording of their administrative hearing. The record of the hearing shall include but shall not be limited to:

(1) All pleadings, motions, and intermediate rulings;

(2) Evidence received or considered;

(3) Any decision, opinion, or report by the hearing officer presiding at the hearing; and

(4) All staff memoranda or data submitted to the hearing officer or members of the agency regarding their consideration of the case.

(i)Obtaining testimony. As initial testimony, the hearing officer requests from the representative of the State Agency on Aging (or the affected Area Agency on Aging) and from the appellant, a brief statement of the reason(s) for the appeal. The hearing officer then makes a brief summary of these statements in order to define the point(s) at issue.

(1) The hearing officer is responsible, before taking further testimony, for explaining that any presentation by the appellant or representatives of the appellant, or representative(s) of the State Agency on Aging (or the affected Area Agency on Aging) must be related to the point(s) at issue.

(2) It is the responsibility of the hearing officer to aid in the development of the statement of facts relative to the point(s) at issue. When opinions of a subjective nature or expert opinions of a technical nature are relevant, the hearing officer elicits information which will indicate the competence of the persons making these statements.

(3) The hearing officer affords representatives of both the appellant and the State Agency on Aging (or the affected Area Agency on Aging) opportunity to establish all pertinent facts and circumstances, to advance any arguments without undue interference, to refute any testimony and evidence, and to confront, question, and cross examine any witnesses who furnished evidence upon which the decision to deny or terminate funding was made. Care is taken by the hearing officer to ensure accuracy and clarity of all materials used as testimony or exhibits.

(j)Presentations by the appellant and the appellant's witnesses. The appellant is provided the opportunity to present evidence in any way desired. Representatives or staff of the appellant may wish to present evidence or they may wish to bring witnesses to help establish pertinent facts, ask for substantiation or any statements made by other witnesses and present evidence in rebuttal. Legal counsel is unnecessary, but the appellant may be represented by legal counsel, if desired.

(k)Presentations by the Department (Aging Services Division) or the affected Area Agency on Aging. The individual representing the State Agency on Aging (or the affected Area Agency on Aging) is, whenever possible, the staff member who is familiar with and was involved in the protested decision. The evidence is presented in the form of a written summary prepared in advance and a copy provided to the appellant. The testimony presented by the Department (Aging Services Division) or the Area Agency on Aging must contain a verbatim recording of the State or Area Agency on Aging Title III Older Americans Act policy or policies which relate to the point(s) at issue. The written summary must be supported by live testimony of witnesses with personal knowledge of the facts related to the protested decision.

(l)Recessed hearings. At any point during the taking of testimony that there is a clear need for allowing additional time before proceeding with the taking of testimony, the hearing officer may recess a hearing for a reasonable period of time. Since postponements are costly both in time and travel, this procedure is not used unless the information sought seems essential to a proper decision and cannot be obtained without a recess.

(m)Closing statement by hearing officer. After testimony is given by representatives of and on behalf of the appellant, by the representative of the Aging Services Division (or the affected Area Agency on Aging), and any cross examinations have been completed, the hearing officer inquires whether there is any additional testimony to be presented. If so, this information is elicited by the hearing officer. If the hearing is being recessed, the hearing officer explains the reason(s) for the recess and the responsibilities to be carried out by the appellant and the Aging Services Division (or the affected Area Agency on Aging) before the hearing is reconvened. The hearing officer will be responsible for setting the date on which the hearing will be resumed and for notifying the appellant and the Aging Services Division (or the Area Agency on Aging).

(1) If the hearing is not being recessed, as soon as all pertinent testimony has been presented, the hearing officer makes a closing statement in which he/she explains that:

(A) Any one of several decisions might be reached (the hearing officer explains what these possible decisions are based upon the type of hearing);

(B) The decision will be made within 90 days of the date the appellant requested the hearing;

(C) A letter will be sent to the client from the Appeals Unit (with a copy to the Aging Services Division or the Area Agency on Aging, as appropriate) stating the decision made on the appeal and reasons for the decision; and

(D) The Aging Services Division or the Area Agency on Aging is responsible for taking whatever action is required to carry out the decision made on the appeal.

(2) The hearing officer closes the hearing.

(n)Hearing officer's summary. As soon as practical after the hearing officer closes the hearing, a hearing officer's summary is prepared by the hearing officer. The summary consists of what transpired in the hearing including testimony and written evidence introduced into the record of the hearing.

(o)Decision by the Department. The administrative hearing officer is responsible for reviewing the evidence and applicable policy submitted during the hearing procedures. If the hearing officer concludes that the State Agency on Aging (or the Area Agency on Aging) acted correctly in taking the adverse action, a decision letter will be issued to the grantee/applicant advising that the adverse action will be upheld. The decision letter, which represents the Department's final decision, is issued within 90 days from the date of the appellant's written request for a hearing. If the administrative hearing officer disagrees with the Aging Services Division or Area Agency on Aging action, the Division Administrator for Aging Services will be given five days to review the case, concur with the administrative hearing officer or request that the Appeals Committee be convened to decide the issue. The decision of the Appeals Committee is based only on testimony and exhibits introduced at the hearing, including the hearing officer's summary, and any supplemental material requested by the Appeals Committee. The decision is made on the situation as it was at the time the appealed action was taken by the State Agency on Aging (or the Area Agency on Aging):

(1) The Appeals Committee may make any one of the following decisions:

(A) To sustain the grantee/applicant;

(B) Not to sustain the grantee/applicant;

(C) To dismiss the hearing or cancel by reason of appellant withdrawal or abandonment; or

(D) To reopen for the taking of additional evidence.

(2) The decision of the Appeals Committee is final.

(p)Abandonment of hearing. The Appeals Committee may authorize the dismissal of a hearing under special circumstances which indicate that it is impossible to hold the hearing. If the appellant fails to appear at the time the hearing is scheduled and fails to submit evidence to establish "good cause," the hearing will be considered abandoned on the part of the appellant. A hearing may not be considered abandoned as long as the appellant has provided notification, up to time of hearing, that he/she is unable due to "good cause" to keep the appointment and that he/she still desires a hearing.

(q)Reopened hearings. When, in the judgement of a majority of the Appeals Committee, the evidence presented in the hearing is so inadequate that a decision cannot be rendered, the hearing is reopened and further information requested. When it is necessary to reopen a hearing, the Appeals Unit sends to the appellant and the State Agency on Aging (or the Area Agency on Aging) a statement of the points on which information is unclear or inadequate with instructions that further investigation of these points is to be made and by whom. The appellant is expected to cooperate in any way necessary to obtain the desired information and failure to do without "good cause" will result in the dismissal of the hearing.

(1) The hearing officer will request that the State Agency on Aging (or the Area Agency on Aging) obtain the needed information. When the additional facts are obtained, the representative of the State Agency on Aging (or the Area Agency on Aging) interviews the appellant or representative of the appellant and advises him/her of the facts secured, the sources of the facts and how the facts relate to the point(s) at issue.

(2) The appellant is given an opportunity to decide whether he/she prefers that all parties reconvene. The appellant is advised of the right to submit material directly to the Appeals Committee if the appellant desires to do so. If the appellant elects to have all parties reconvene, the State Agency on Aging (or the Area Agency on Aging) notifies the Appeals Unit in writing and the unit schedules a date for reconvening all parties. Immediately following the interview with the appellant or representative of the appellant, the State Agency on Aging (or the Area Agency on Aging) prepares a written summary of the facts secured since the reopening of the hearing. A copy of this summary is forwarded to the appellant by the State Agency on Aging (or the Area Agency on Aging) within two working days after receipt of the copy of the Appeals Unit letter setting the date for continuation of the hearing. The summary is used as testimony presented by the State Agency on Aging (or the Area Agency on Aging) at the reconvened hearing. The same procedures are followed during the taking of testimony and subsequent to the taking of testimony as are used in relation to any other hearing.

Okla. Admin. Code § 340:2-5-44

Added at 11 Ok Reg 807, eff 12-14-93 (emergency); Added at 11 Ok Reg 2653, eff 6-13-94