Ala. Admin. Code r. 660-5-37-.08

Current through Register Vol. 43, No. 02, November 27, 2024

Section 660-5-37-.08 - Hearings

(1) Purpose. If the Department makes the decision to revoke or refuse to renew the license, approval or six-month permit, a pre-revocation hearing must be held. The purpose of the pre-revocation hearing is to provide sufficient opportunity for the licensee/permit or approval holder to show why the action of revocation should not be taken.

(2) Pre Revocation Notice. The notice of the pre-revocation hearing will be sent to the licensee/permit or approval holder by certified mail unless waived.

(3) Pre Revocation Location and Participants.

(a) The pre-revocation hearing will be held either in the County Department or the State Department in Montgomery with the licensee/permit or approval holder and staff members of the Department. The licensee/permit or approval holder has a right to request the issuance of subpoenas to witnesses. The request must be received by the hearing officer no later than 10 days prior to the pre-revocation hearing.

(b) The hearing officer for the pre-revocation hearing will be a staff member of the State Department of Human Resources. The licensee/permit or approval holder must be present at the pre-revocation hearing unless the hearing officer excuses him for a specified reason. He may speak for himself or be represented by an attorney or other representative. An attorney for the Department may also be present.

(4) Pre Revocation Evidence and Testimony.

(a) The licensee/permit or approval holder may present written evidence or oral testimony and bring to the pre-revocation hearing members of his family, other persons and witnesses. The licensee/permit or approval holder and his representative have the right to review in the State Department or the County Department, as appropriate, at reasonable times prior to or during the pre-revocation hearing the case file and written material which will be placed on exhibit or in evidence by the Department. Certain confidential information such as child abuse and neglect records may remain privileged and not subject to disclosure or review.

(b) During the pre-revocation hearing the hearing officer will hear testimony from the Department as to the specific findings upon which the intended revocation is based. Specific Minimum Standards that are not met will be cited by the Department. The licensee/permit or approval holder or his designated representative will be provided opportunity to present objections to the Department's intended action and to refute findings upon which the decision was based. The licensee/permit or approval holder should be given the opportunity to voluntarily surrender the license or permit or to withdraw the application for renewal.

(5) Pre Revocation Withdrawal. If, after having received notice of the pre-revocation hearing, the licensee/permit or approval holder chooses not to have a pre-revocation hearing, he must notify the hearing officer verbally or in writing. The hearing officer will send a letter to the licensee/permit or approval holder confirming the cancellation of the pre-revocation hearing and advising him that the intended action will be taken. The decision not to have a pre-revocation hearing does not alter the right to a fair hearing following the action taken.

(6) Pre Revocation Decision. The hearing officer will render a decision as to whether the intended action should be taken. If the license/permit/approval is to be revoked, the hearing officer will send a letter by certified mail, unless waived, to the licensee/permit or approval holder and his attorney, if any, stating the decision and citing specific Minimum Standards not met and supporting evidence. If it appears that the Department should take a different action, the hearing officer may recommend that the Department make appropriate stipulations, agreements, arrangements, etc.

(7) Follow-Up Action. The licensing authority will take the action specified and notify the licensee/permit or approval holder of the effective date. The Commissioner of the State Department of Human Resources is the licensing authority for all residential child-care facilities licensed by the Department. The pre-revocation hearing does not alter the right of the licensee/permit or approval holder to a fair hearing, if he/she is dissatisfied with the decision of the Department following the pre-revocation hearing. Notice of the right to appeal for a fair hearing must be sent to the licensee/permit or approval holder by certified mail.

Note: No pre-denial hearing is required to be held prior to the denial of an initial application for a license, six-month permit or approval.

(8) Appeal For a Fair Hearing and Review. If any of the circumstances listed below occurs, the aggrieved party may appeal to the Department for a fair hearing.

(a) License or licensee is denied an initial or renewal license to a facility requiring a license approval by the Department.

(b) License is suspended or revoked for a facility requiring a license approval by the Department.

(c) Application for a license is not acted upon with reasonable promptness.

(d) License approval required by this chapter is unduly delayed by this Department.

(9) Right To Hearing. Notice and opportunity for a fair hearing and notice of right to counsel shall be given the appellant by the Department. Any party aggrieved by a final decision or action of the Department refusing to grant or to issue, or suspending or revoking a license or an approval for the operation of any child care facility required by law to be licensed or approved by the Department is entitled to a review of such final decision or action.

(10) Filing Of Complaint. The complaint is to be filed with the circuit court in the county in which the child care facility is located or in the circuit court of Montgomery County, Alabama. All such complaints shall be filed within 30 days from the date of the decision or action in question. A review shall be granted as a matter of right upon the filing with the Department of a bond for security of costs of said review and upon filing said complaint both with the register or clerk of the circuit court, as designated herein above, and with the Department.

(11) Hearing Participants. Any party at interest may appear and present any relevant facts. Upon motion of either party or upon its own motion the court may at its discretion take additional evidence.

(12) Hearing Decision. The decision or action of the Department on a fair hearing of any such appeal shall be final and binding and all parties shall comply. The court may set aside the final decision of the Department only upon a finding of the court that such final decision was illegal, capricious or unsupported by the evidence.

The provisions of this section shall not apply to boarding homes and free homes as defined in this chapter.

Author: Linda S. Stephens

Ala. Admin. Code r. 660-5-37-.08

Repealed and New Rule: Filed November 15, 1999; effective December 20, 1999; operative March 1, 2000.

Statutory Authority:Code of Ala. 1975, §§ 38-7-1 through -17, §§ 41-22-1 through -27