Section 434.10 Administrative Hearings of Draft Audit Findings and Recommendations

Section 434

Section 434.10

Administrative Hearings of Draft Audit Findings and Recommendations

a)         When a request for an administrative hearing is received, the

administrator of the Administrative Hearings Unit will grant a request for a

hearing only when the following conditions are met:

1)         the written request for an administrative hearing is received

by the Department within the 15 business days following the conclusion of the

exit conference;

2)         the request is accompanied by supporting documents or factual

matters which refute or modify the Department's draft finding; and

3)         the issue is within the jurisdiction of the Administrative

Hearings Unit (see 89 Ill. Adm. Code 435.3(g)).

b)         The administrator of the Administrative Hearings Unit shall

dismiss a request for an administrative hearing only when:

1)         The appeal has been withdrawn in writing;

2)         The appeal has been abandoned.  Abandonments shall be deemed

to have occurred if the appellant, the appellant's authorized representative,

or an individual legally authorized to act on behalf of the appellant fails to

appear at the hearing and the appellant does not have an adequate cause for

failing to appear.  Adequate cause for failing to appear at an administrative

hearing may include but is not limited to:

A)        death in the family of the appellant or in the family of the

appellant's representative;

B)        serious illness of the appellant or the appellant's

representative or serious illness in either person's immediate family;

C)        transportation difficulties that make it impossible for the

appellant or representative to appear at the hearing; or

D)        failure of the Department to give notice of the hearing to the

appellant or representative at the last known address available to the Department

illness of the appellant or the appellant's

representative or serious illness in either person's immediate family;

C)        transportation difficulties that make it impossible for the

appellant or representative to appear at the hearing; or

D)        failure of the Department to give notice of the hearing to the

appellant or representative at the last known address available to the Department.

However, it is the appellant's responsibility to keep the Department updated on

any change of address;

3)         the issue is not within the jurisdiction of the Administrative

Hearings Unit;

4)         the request for an administrative hearing was not received

within 15 calendar days following the conclusion of the exit conference;

5)         the appellant failed to notify the administrator of the

Administrative Hearings Unit of a change of address, and a notice of the

administrative hearing cannot be delivered.

c)         The Department shall provide written notice of the decision to

grant or deny the request for an administrative hearing within 20 calendar days

after receipt of the request for an administrative hearing.  If the

administrator of the Administrative Hearings Unit finds that the issue is not

appealable under this Part, but can be appropriately heard through another

appeal process, in accordance with 89 Ill. Adm. Code 435 (Administrative

Appeals and Hearings), the Department shall forward the appeal to the proper

hearing authority and notify the appellant of this action.

d)         The administrator of the Administrative Hearings Unit shall:

1)         schedule the hearing at a date within 30 calendar days after

the date of the appellant's written request for hearing;

2)         ensure that the administrative hearing is scheduled at a time

and place reasonably convenient for all parties

al to the proper

hearing authority and notify the appellant of this action.

d)         The administrator of the Administrative Hearings Unit shall:

1)         schedule the hearing at a date within 30 calendar days after

the date of the appellant's written request for hearing;

2)         ensure that the administrative hearing is scheduled at a time

and place reasonably convenient for all parties.  If the parties cannot agree

to a reasonably convenient time and place, the administrator shall make this

determination and proceed to schedule the hearing;

3)         provide a written notice to the appellant at least 15 calendar

days before the scheduled hearing, which shall contain the following

information:

A)        the date, time and location of the hearing;

B)        a statement that the appellant or appellant's representative's

failure to appear at the hearing without adequate cause may be deemed an

abandonment of the request, thus constituting a waiver by the appellant of the

right to a hearing; and

C)        a statement of the parties' rights during the appeal process.

e)         An appellant may bring a representative, including legal

counsel, to the hearing.  Expenses of a representative or of an appellant's

witnesses shall be paid by the appellant.

f)         An appellant may request the Department employee who had

direct involvement in the audit, or other persons who may have information

relevant to the issues in dispute, to attend the hearing by asking the

administrator of the Administrative Hearings Unit to issue appropriate

subpoenas.  Witness fees and travel expenses for persons other than Department

employees are the responsibility of the party requesting the subpoena.

g)         Any motions from the appellant or the Department shall be

filed with the administrative law judge at least 10 calendar days before the

hearing.  Copies shall be provided simultaneously to the Department's

representative and the appellant

bpoenas.  Witness fees and travel expenses for persons other than Department

employees are the responsibility of the party requesting the subpoena.

g)         Any motions from the appellant or the Department shall be

filed with the administrative law judge at least 10 calendar days before the

hearing.  Copies shall be provided simultaneously to the Department's

representative and the appellant.

h)         At the appellant's request, the Department shall provide an

interpreter at no cost to the appellant if English is not the appellant's

primary language or a sign interpreter if the appellant is hearing impaired.

i)          Both the appellant and the Department have the right to

examine and copy documents and other information to be used by either party and

to receive a list of witnesses to be called by either party at the hearing by

requesting them at least 10 calendar days before the hearing.  If a party fails

to disclose evidence and then seeks to introduce it at the hearing, the

administrative law judge shall consider the surprise or prejudice to the other

parties, including prior disclosure during the audit process.  The

administrative law judge's authority includes adjourning or continuing the

hearing to a later time or date to permit the other parties to examine the

evidence and prepare their cases accordingly.

j)          During the administrative hearing, the appellant and the

Department have the right to:

1)         present and question witnesses;

2)         present any information relevant to the issues;

3)         question or disprove any information, including an opportunity

to question opposing witnesses; and

4)         dispose of any disputed issue by mutually agreeing to a

resolution any time prior to the conclusion of the administrative hearing

ellant and the

Department have the right to:

1)         present and question witnesses;

2)         present any information relevant to the issues;

3)         question or disprove any information, including an opportunity

to question opposing witnesses; and

4)         dispose of any disputed issue by mutually agreeing to a

resolution any time prior to the conclusion of the administrative hearing.

k)         In an administrative hearing concerning audit findings:

1)         the Department carries the burden of proof by preponderance of

the evidence; and

2)         the administrative law judge has the authority to recommend

changes in the audit findings record.

l)          Appointment of the Administrative Law Judge

The

administrator of the Administrative Hearings Unit shall select, and the Director

shall appoint a trained impartial administrative law judge from the available

pool to conduct the appeal hearing.  The administrative law judge shall:

1)         be an attorney licensed to practice law in the State of

Illinois;

2)         possess knowledge and information acquired through training

and/or experience relevant to the field of child and family welfare law

including familiarity with Department rules, procedures and functions;

3)         not have been involved in the decision to take the action

being appealed or have rendered legal advice to the decision maker on the

issue; and

4)         not have a personal or professional interest which interferes

with exercising objectivity or have any bias against the parties or issues

appealed. An adverse ruling, in and of itself, shall not constitute bias or

conflict of interest.

m)        Functions of the Administrative Law Judge

The

administrative law judge shall have all authority allowed under the Illinois

Administrative Procedure Act [5 ILCS 100]

sonal or professional interest which interferes

with exercising objectivity or have any bias against the parties or issues

appealed. An adverse ruling, in and of itself, shall not constitute bias or

conflict of interest.

m)        Functions of the Administrative Law Judge

The

administrative law judge shall have all authority allowed under the Illinois

Administrative Procedure Act [5 ILCS 100]. This authority shall include, but is

not limited to, the following:

1)         conduct a fair, impartial and formal hearing in which the strict

rules of evidence do not apply;

2)         provide for the recording of the hearing;

3)         inform participants of their individual rights and their

responsibilities;

4)         conduct preliminary and prehearing telephone conferences, if

necessary, between the parties and/or their attorneys to provide information

about the procedural aspects of the hearing, narrow the issues and discuss

possible stipulations and contested points of law in order to expedite the

actual hearing;

5)         take necessary steps to develop a full and fair record which

contains all relevant facts;

6)         administer an oath or an affirmation to all witnesses;

7)         quash or modify subpoenas for good cause, including but not

limited to relevance, scope, materiality and emotional harm or trauma to the

subpoenaed witness;

8)         preserve all documents and evidence for the record;

9)         rule upon evidentiary issues and contested issues of law at

the hearing or take matters under advisement pending issuance of the written

opinion and recommendation;

10)       order the removal of any person from the hearing room who is

creating a disturbance whether by physical action, profanity or otherwise

engaging in conduct which disrupts the hearing;

11)       identify the issues, consider all relevant facts and receive or

request any additional information necessary to decide the matter in dispute,

including but not limited to the submission of briefs, memoranda of law,

affidav

any person from the hearing room who is

creating a disturbance whether by physical action, profanity or otherwise

engaging in conduct which disrupts the hearing;

11)       identify the issues, consider all relevant facts and receive or

request any additional information necessary to decide the matter in dispute,

including but not limited to the submission of briefs, memoranda of law,

affidavits or post hearing briefs; and

12)       present a written opinion and recommendation to the Director

within 30 calendar days after the record of the administrative hearing is

completed or transcript is received.  The opinion shall contain a summary of

the evidence, findings of fact, conclusions of law and a recommendation.

n)         Combined Hearings

When a common

issue is raised, the Department may respond to requests for hearings from more

than one appellant by conducting a single group hearing. The Department may

also combine all issues raised by a single petitioner in one hearing.  In all

group hearings, the appeal system in this Part shall apply. Individuals shall

be permitted to present their own cases separately.  The Department, if

required for the fair, efficient administration of the hearing or to prevent

possible prejudice to the appellant, may sever any party or any issue from the

combined hearing.  The severed party or issue shall be heard separately.

o)         Making the Final Administrative Decision

The Director

of the Department shall receive the recommended decision from the

administrative law judge and shall agree, disagree, or modify the recommended

decision.  The Director's decision is the final administrative decision of the

Department and shall be based upon good business practices and generally

accepted accounting principles.  If the decision requires corrective action by

the Department, the Director shall appoint a Department staff person who shall

be responsible for assuring compliance with the decision and within the

timeframes prescribed within the decision

cision is the final administrative decision of the

Department and shall be based upon good business practices and generally

accepted accounting principles.  If the decision requires corrective action by

the Department, the Director shall appoint a Department staff person who shall

be responsible for assuring compliance with the decision and within the

timeframes prescribed within the decision.

p)         Notice of the Availability of Judicial Review

The Department

shall include a notice to appellants as part of the final administrative

decision.  This notice shall include the name of the person responsible for

compliance, if applicable, and shall advise the appellants that under the

provisions of the Code of Civil Procedure [735 ILCS 5/Art. 3] that they may

seek judicial review of the Department's decisions if it is unfavorable to

them, within the statutory time frame.

q)         Who Receives Copies of the Final Administrative Decision

The appellant

or authorized representative, the Department's representative, the

administrative law judge, and the administrator of the Administrative Hearings

Unit shall receive a copy of the final administrative decision.

r)          Records of Administrative Hearings

The permanent

record of the administrative hearing and the final administrative decision

shall be maintained by the administrator of the Administrative Hearings Unit.

All hearing decisions shall be available for public inspection during regular

business hours.  However, confidential information shall be deleted in

conformance with 89 Ill. Adm. Code 431 (Confidentiality of Personal Information

of Persons Served by the Department) and federal or State laws and regulations

on confidentiality.