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Subject 290-1-1 HEARINGS AND PETITIONS FOR RULE-MAKING

Rule 290-1-1-.01 Scope of Chapter

The Rules in this Chapter are procedural only, and confer no substantive rights. This Chapter applies to all hearings held by the Department unless a specific statute, Federal regulation or other authority governs otherwise, in which case this Chapter applies to the extent not inconsistent therewith.

Rule 290-1-1-.02 Definitions

The following words and terms as used in these Rules shall have the following meanings:

(a) "Board" means the Board of Human Resources of the State of Georgia;
(b) "Commissioner" means the chief administrative officer of the Department;
(c) "Department" means the Department of Human Resources of the State of Georgia and for public assistance purposes includes the county departments of family and children services and other entities included by O.C.G.A. Sec. 49-4-2 or its successor statute, and for O.C.G.A. Title 37 purposes includes the agents and designees included by O.C.G.A. Sec. 37-1-1(3) or its successor statute;
(d) "Hearing" means a right of the Department and persons and parties affected by an action or intended action of the Department to present testimony, documentary evidence and argument as to why such action should or should not be taken;
(e) "Hearing Officer" means the person employed and authorized to conduct the hearing and take action as authorized by law or regulation;
(f) "Notice of Hearing" means a written statement of the time, date and place of the hearing, the legal authority under which it will be held, the issues to be considered, and the participants' rights and duties. A Notice of rule-making hearing will also identify the rule under consideration; other Notices will generally state the nature of the hearing;
(g) Office of State Administrative Hearings means the agency established by O.C.G.A. Chapter 50-13, Article 2.
(h) "Party" means each person or agency named or admitted as a party, or properly seeking and entitled as a right to be admitted as a party;
(i) "Person" means any individual, partnership, corporation or association and includes bodies politic and corporate;
(j) "Reviewing Official" means the person or persons employed and authorized to review hearing records and to issue final decisions, in cases where administrative review of hearing decisions is authorized and properly invoked;
(k) "Rule" as used in this Chapter has the same meaning given in O.C.G.A. Sec. 50-13-2(6) or its successor statute.
(l) "License" as used in this Chapter has the same meaning given in O.C.G.A. Sec. 50-13-2(3) or its successor statute.

Rule 290-1-1-.03 Licensing

(1) In any proceeding relating to actions revoking, suspending, or denying a license to any party or person, such action cannot be taken without giving the affected party prior written notice of the intended action and affording an opportunity for hearing pursuant to the provisions of this Chapter, except in the following circumstances:
(a) An imminent threat to the public health, safety or welfare exists such that emergency action is necessary, in which case the license may be summarily suspended pending the revocation hearing by an Emergency Order issued by the Commissioner or Commissioner's designee containing a factual finding and description of the necessity for the summary action; or
(b) The Department is authorized or required by specific statute or court order or judgement to act without a hearing.
(2) Requests by the licensee for exculpatory or favorable information in the Department's files in any action under this Rule must be made to the assigned Hearing Officer or to the Office of State Administrative Hearings.

Rule 290-1-1-.04 Quasi-judicial or Enforcement Hearings

Quasi-judicial or enforcement hearings are to enforce or sanction violations of an existing rule; or to investigate, declare or enforce liabilities or privileges on present or past facts or existing law.

Rule 290-1-1-.05 Same; Hearing Requests Subject to the Jurisdiction of the Office of State Administrative Hearings

(1) Hearing requests received by the Department which are within the jurisdiction of the Office of State Administrative Hearings shall be promptly transmitted to that Office in accordance with the instructions of that Office. The Department may file any procedural or jurisdictional objections to any hearing request at the time of transmittal.
(2) Initial decisions transmitted to the Department by the Office of State Administrative Hearings for review shall be accompanied by the entire hearing record. Reviews of the records and decisions will be by the Commissioner or his designees who will issue the final decisions. Such decisions will be binding on the Department and no further administrative remedy will be available.
(3) Decisions made by the Office of State Administrative Hearings in the following classes of cases will become final upon issuance by that Office and without further Departmental action:
(a) Cases arising under the Child Support Enforcement Act, O.C.G.A. Chapter 19-11, Art. 1, and related State and Federal laws;
(b) Cases involving continuing involuntary hospitalization or habilitation and cost of care arising under O.C.G.A. Title 37 or the Department's Published Rule 290-4-7-.08;
(c) Cases arising under O.C.G.A. Chapter 48-7, Art. 7, and related State and Federal laws involving the interception and setoff of tax refunds;
(d) Cases arising under O.C.G.A. Chapter 31-8, Arts. 5 and 5A, and related State and Federal laws involving rights of residents of long-term care facilities and personal care homes;
(e) Cases arising under O.C.G.A. Chapter 49-5, Art. 8, concerning establishment of a Child Protective Services Information System;
(f) Intentional Program Violation (IPV) disqualification hearings, and IPV disqualification hearings held in combination with Food Stamp fair hearings, in the Food Stamp program under 7 USCA § 2015 and 7 CFR § 273.16 and their successor statutes and regulations and related State laws;
(g) Early intervention services cases arising under 20 USCA § 1480 and 34 CFR §§ 303.420et seq. and their successor statutes and regulations and related State laws.

Rule 290-1-1-.06 Same; Hearings Subject to the Jurisdiction of the Department

Hearings subject to the jurisdiction of the Department shall be conducted in accordance with Rules .07 through .12 of this Chapter.

Rule 290-1-1-.07 Hearing Officer's Authority to Conduct the Hearing

(1) The Hearing Officer shall have the authority to do the following:
(a) Hold prehearing conferences to settle, simplify, determine or strike any of the issues at a hearing;
(b) Administer oaths and affirmations;
(c) Sign and issue subpoenas and rule on offers of proof;
(d) Regulate the course of the hearing;
(e) At the Hearing Officer's discretion, set the time and place for continuances and fix the time for filing briefs;
(f) Accept motions for dismissal for lack of Department jurisdiction over the subject matter or the parties, or for any other ground, or raise such matters on the Hearing Officer's own motion;
(g) Accept and rule on motions to amend pleadings, to intervene, to open default, to extend time limits where motion is made prior to the expiration of same, and other matters, or raise such matters on the Hearing Officer's own motion;
(h) Obtain or provide for obtaining written, videotaped or audiotaped testimony or for evidence in other forms;
(i) Reprimand or exclude from any hearing any person for indecorous or improper conduct committed at or during any hearing or, if unable to obtain obedience to reasonable directions and as a last resort, to adjourn the hearing;
(j) Require a showing of authority by anyone purporting to appear in any representative authority;
(k) Arrange or request a party to arrange for the presence of interpreters or other measures to assist parties or witnesses; a party who needs such assistance shall notify the Hearing Officer in advance of the hearing;
(l) Arrange for and issue notices of the date, time and place of hearings or conferences;
(m) Rule on, admit, exclude, or limit evidence;
(n) Issue default dismissals for failure to attend or participate;
(o) Take such other action as might be required to facilitate the development of a complete record upon which to base a decision as long as such actions are not inconsistent with relevant laws and regulations.
(2) In considering the site for the conduct of the hearing, the Hearing Officer shall give due regard to the convenience and necessity of the parties and their representatives, the witnesses and the location of records. Where common questions of fact or law exist, group hearings may be scheduled for all parties to whom such commonalities apply.
(3) The Hearing Officer may conduct the hearing in whole or in part, including preliminary or collateral proceedings, by telephone unless the parties object. If the objecting party is the Department or its agents, the Hearing Officer may overrule the objection unless good cause is shown for the objection.
(4) Objections to the sufficiency of a Notice of Hearing must be made by a written motion for a more definite statement, delivered to the Hearing Officer at least five (5) days prior to the hearing date.
(5) The Hearing Officer may at any time and on his or her own motion determine the Hearing Officer's jurisdiction over the issues or parties. Hearings may be denied or dismissed if the sole issue is one mandated by law with no Departmental discretion, or if the Department has no authority to grant the relief requested.

Rule 290-1-1-.08 Procedures

(1) The order of proof in the conduct of a hearing should be somewhat flexible. Generally the following procedure will be followed:
(a) The Department or its representative should examine its witnesses and present its proof first;
(b) The opposing party and its witnesses should then be heard;
(c) The giving of testimony by each party and its witnesses is subject to appropriate cross-examination by the opposite parties and questioning by the Hearing Officer;
(d) The Hearing Officer may call and examine witnesses to develop the record fully and to ensure all evidence favorable to an unrepresented party is presented.
(2) Each party will be given a reasonable time in which to complete its case. The hearing will not be considered complete until both sides have been given a reasonable opportunity to complete their arguments. The party against whom the action is to be taken will generally be allowed the last closing argument.
(3) Formality of pleadings or format shall not be required. Unless otherwise specified, all papers may be filed in the hearing record by mailing or delivery, suitably marked for identification, to the Hearing Officer.
(4) Unless otherwise specified all notices, pleadings, motions, etc. may be served by regular U.S. Mail. Mailed documents will be considered as timely if postmarked within the applicable time period. The Hearing Officer may at his or her discretion consider papers filed late, balancing the reasons for the delay against the prejudice to the other parties. The Hearing Officer may request that any Departmental employee or any party hand-deliver any paper if the circumstances require such.
(5) The rules of evidence as applied in the trial of civil nonjury cases in the superior courts of Georgia shall be followed. When necessary to ascertain facts not reasonably susceptible of proof under such rules, evidence not admissible thereunder may be admitted, except where precluded by statute, if it is of a type commonly relied upon by reasonably prudent persons in the conduct of their affairs or if it consists of a report of medical, psychiatric, or psychological evaluation of a type routinely submitted to and relied upon by the Department in the normal course of its business.

Rule 290-1-1-.09 Contents of Hearing Records

(1) A record of the hearing shall be kept and shall include:
(a) All pleadings, motions and rulings;
(b) A summary of the oral testimony and all other evidence received or considered, except that if the oral proceeding was recorded the recording or written transcript may be kept in lieu of the summary of the oral testimony;
(c) A state of matters officially noticed;
(d) Questions and offers of proof and rulings thereon;
(e) Initial, proposed or recommended findings of fact and conclusions of law, if applicable;
(f) Any decision, report or opinion by the Hearing Officer or Reviewing Official, except that the Hearing Officer's or Reviewing Official's personal notes, research or other work product shall not be part of the record; and
(g) All staff memoranda or data submitted to the Hearing Officer or members of the Department in connection with their consideration of the case.
(2) Official notice may be taken of Departmental records, including other hearing records, where relevant or helpful in developing the facts of any case.
(3) Recordation of oral hearings:
(a) Oral hearings will be recorded on magnetic tape at the Hearing Officer's discretion or where either party requests recordation sufficiently in advance to allow the Hearing Officer to arrange for recording equipment.
(b) The Hearing Officer may at his or her discretion allow any party to record the hearing at the party's own expense, provided the hearing will not be disrupted and confidentiality can be protected. In all cases recorded by the Hearing Officer, however, the Hearing Officer's recordation will be the official record of the hearing.
(c) Where the hearing is not recorded for any reason and a record of the oral hearing becomes necessary, the testimony and proceeding may be reconstructed by stipulation or by the recollection of the persons attending. Where the parties cannot agree, the Hearing Officer may reconstruct the proceeding and the Hearing Officer's reconstruction shall be final.

Rule 290-1-1-.10 Decisions

(1) The Hearing Officer will issue a recommended decision, including findings of fact and conclusions of law, to the Commissioner within thirty (30) days of closure of the record, unless the Hearing Officer determines that additional time is needed for a full evaluation of the record. The recommended decision will be mailed or delivered to the parties. If no appeal is filed to the Commissioner within thirty (30) days after issuance of the recommended decision, the recommended decision will become the Department's final decision and will be binding on the Department. No further administrative relief will be available.
(2) Appeals to recommended decisions will be considered by the Commissioner or his designee, who will issue the Department's final decision within thirty (30) days of receipt of the appeal, unless an extension of time is necessary for a full evaluation of the record. The final decision will be binding on the Department upon issuance, and no further administrative relief will be available.
(3) Where fewer than all parties authorized to appeal a recommended decision do so, the Commissioner or his assigned designee may send notice of the appeal to the non-appealing parties. Said parties may then participate in the appeal as fully as the appealing parties, and will be as bound by the final decision.
(4) Clerical mistakes, oversights and omissions in decisions and proposed decisions may be corrected following issuance, provided that no rights of the parties are adversely affected.

Rule 290-1-1-.11 Subpoenas and Discovery

(1) The Hearing Officer may provide for examination of the hearing record by the parties as follows:
(a) All laws of confidentiality and privilege shall be respected by the parties, and the Hearing Officer may, by order, condition any party's access to the record so as to protect confidentiality and privilege;
(b) The Hearing Officer may arrange for examination by other parties prior to the hearing of any documents to be used by any party at the hearing, by directing the parties to make their documents available to the other parties for examination by appointment or to exchange copies, or by delivering the documents to the Hearing Officer prior to the hearing, or by other reasonable means;
(c) The Hearing Officer may recess, postpone, or continue the hearing to allow the parties to examine documents not previously disclosed. Where the recess or continuance will adequately protect the parties' rights, the mere failure to disclose a document prior to the hearing will not require its exclusion from the record;
(d) At the request of any party or on the Hearing Officer's own motion the Hearing Officer may mask or excise irrelevant, privileged or confidential parts of any document prior to its examination by the other parties. No consideration will be given to the masked or excised parts in the decision if the other party objects to such consideration. The Hearing Officer shall retain in the record a sealed copy of the document without the deletions, for consideration by the court in case of administrative or judicial review.
(e) If any party refuses to comply with the Hearing Officer's reasonable directions to make a document available to other parties, the Hearing Officer may as a last resort exclude the document and any evidence or testimony derived from or based upon it from the record.
(2) The Hearing Officer may issue subpoenas for witnesses and records at the request of any party or on his or her own motion, provided the request is made sufficiently in advance of the hearing date to permit good service.
(3) The Hearing Officer is authorized to direct any employee of the Department to attend the hearing or prehearing conference, and to receive custody of the Departmental records for presentation at the hearing.
(4) Prior to the issuance of any subpoena or discovery order, the Hearing Officer may require a preliminary showing of relevance of the evidence sought or need for the order, and may also require a showing that alternate means of obtaining the evidence have been exhausted.

Rule 290-1-1-.12 Ex Parte Contacts with Hearing Official

The Hearing Officer or Reviewing Official may be contacted ex parte on matters of an informational or procedural nature, especially by any party not represented by counsel. At the discretion of the Hearing Officer or Reviewing Official, or upon request of a party, such contacts shall be made a part of the record.

Rule 290-1-1-.13 Rule Making or Quasi-legislative Hearings

Rule making or quasi-legislative hearings are to establish, amend or repeal rules of general application. The establishment, amendment or repeal will operate prospectively.

Rule 290-1-1-.14 Same; Procedure

The Department shall adopt, amend or repeal rules or emergency rules in compliance with the Georgia Administrative Procedure Act, O.C.G.A. § 50-134 or its successor statute.

Rule 290-1-1-.15 Same; Petitions for Rule-making

Interested persons may petition the Department requesting the promulgation, amendment or repeal of a rule. Such petition should be in the form of a letter addressed to the Commissioner of the Department setting forth the language of the proposed rule, amendment or repeal, and, where applicable, the language of the rule sought to be amended or repealed. Such letter should be sent to the Commissioner by certified or registered mail and should set forth the interest of the person petitioning the Commissioner. Within 30 days after submission of such petition, the Commissioner or the Board shall initiate rule-making procedures or deny the petition in writing stating the reason for the denial.

Rule 290-1-1-.16 Same; Mailing List

The Department shall maintain a mailing list of persons and organizations wishing to receive notice of intended actions in adopting, amending or repealing Rules. Persons or organizations wishing to be included thereon should submit their names and exact mailing addresses to the Commissioner's Office. Upon receipt of the request, the Department will promptly notify the requesting party of the amount to be paid to the Department to be placed on the mailing list.

Rule 290-1-1-.17 Petitions for Declaratory Ruling

(1) Petitions for declaratory rulings may be delivered by mail, and should be sent to the Commissioner.
(2) A petition may be filed with the Department for a declaratory ruling as to the applicability of any Departmental Rule or order, or statutory provision for which the Department has enforcement authority. The petition need not conform to any specific format, but must:
(a) Specify that it is a petition for a declaratory ruling, and identify the petitioner and his or her mailing address;
(b) Identify the specific statute, Rule or order involved, and describe the specific factual and non-hypothetical circumstances calling its applicability into question;
(c) Demonstrate an actual present need for said ruling, as opposed to a mere abstract desire for same;
(d) Identify all other known persons involved in or impacted by the factual situation causing the petition.

Petitions which do not contain the above information may be rejected by the Department.

(3) The Commissioner or his designee will issue the ruling within thirty (30) days of receipt of the petition unless the advice of the Attorney General or further investigation is needed, in which case the ruling will be issued as soon as possible. The Department may in the course of its investigation contact any other parties involved with or impacted by the statute, Rule or order.
(4) No petition for a declaratory ruling will be accepted where a hearing request is pending on the same subject matter, or where such a ruling would constitute the unauthorized practice of law.

Rule 290-1-1-.18 Hearings and Hearing Records: Confidentiality, Custody, Language, Access, Costs

(1) Hearings will be open to the public unless a law or other authority requires or authorizes closure.
(2) The Hearing Officer assigned to conduct any hearing will be the Department's custodian of that hearing record while the case is in hearing status, and for the duration of any appeal time thereafter. Where the Hearing Officer's decision is appealed to the Commissioner, the Commissioner or his assigned designee will become the custodian upon receipt of the record after issuance of the recommended decision and for the duration of any appeal time thereafter.
(3) All hearing records will be assembled in the English language, as designated by Resolution No. 70, Georgia Laws 1986, Page 529. The Hearing Officer may require or arrange for translation into English of any testimony, arguments, documents or other matter presented in another language, and the English version will be the official record of the item. No person will be prevented from offering evidence or testimony for want of an English translation, however, and the original-language version will also be placed in the record.
(4) Access to hearing records will generally be as provided by Georgia's "Open Records Law", O.C.G.A. Chapter 50-18, Art. 4, or its successor statute, except where access to the record is governed by a specific law or other authority. The Department may exercise its statutory right to protect any record or part thereof from disclosure as authorized by O.C.G.A. §§ 31-5-5 or 37-1-53 or their successor statutes.
(5) Costs for transcripts and copies of records will be governed by the Department's general policy on costs for copies of its records as found in the Departmental Administrative Procedure Manual or its successor.

Rule 290-1-1-.19 Certification of Hearing Records

The official assigned to issue the final decision in any hearing is authorized to certify copies of the record of such hearing as true, complete and correct, and such certification will constitute the certification of the Commissioner and the Department thereto. In the absence or unavailability of the assigned official, the appointing authority of that official or the Commissioner may so certify the hearing record.

Rule 290-1-1-.20 Substantial Compliance Only Required

Exact compliance with this Chapter is desired. Unless a law, Federal regulation, court order or other authority requires otherwise, however, no proceeding under this Chapter will be voided because of a technical failure of compliance which does not harm substantive rights of the parties.

Rule 290-1-1-.21 Severability

In the event that any Rule, sentence, clause or phrase of any of these Rules may be construed by any court of competent jurisdiction to be invalid, illegal, unconstitutional, or otherwise unenforceable, such determination or adjudication shall in no manner affect the remaining Rules or portions thereof. The remaining Rules or portions thereof shall remain in full force and effect, as if such Rule or portions thereof so determined, declared or adjudged invalid or unconstitutional were not originally a part of these Rules.

Rule 290-1-1-.22 Repealed

Rule 290-1-1-.23 Repealed

Rule 290-1-1-.24 Repealed

Rule 290-1-1-.25 Repealed

Rule 290-1-1-.26 Repealed

Rule 290-1-1-.27 Repealed

Rule 290-1-1-.28 Repealed