Ala. Admin. Code r. 70-X-5-.09

Current through Register Vol. 43, No. 1, October 31, 2024

Section 70-X-5-.09 - Commissioner's Review And Final Order

(1) Within thirty (30) days of receipt by the Commissioner of the decision and recommendation of the hearing officer, the Commissioner shall notify the parties of the intent to review the decision in whole or in part.

(2) The review conducted by the Commissioner shall be limited to the issues addressed in the formal hearing before the hearing officer, and shall be based upon a review of the record, the decision and recommendation of the hearing officer, and any objections and documentary evidence submitted by the parties.

(4) In the discretion of the Commissioner, the Commissioner may personally receive additional argument or testimony or may remand the matter to the hearing officer for the submission of additional oral testimony and evidence. If the Commissioner decides to personally receive argument or additional testimony, the Commissioner shall set a date, not more than fourteen (14) days after the date of the Commissioner's notice of intent to review the decision of the hearing officer, by which time additional argument, testimony and evidence shall be received. In the event the Commissioner decides to remand the proceedings to the hearing officer, the Commissioner shall set a date, not more than fourteen (14) days after the date of the Commissioner's notice of intent to review the decision of the hearing officer, by which time additional testimony and evidence, and an amended decision and recommendation of the hearing officer is to be received.

(5) The Commissioner may affirm in whole or in part, reject or modify this recommendation of the hearing officer; provided, however, the Commissioner may reject or modify a recommendation of the hearing officer that supports the position of the party only if it is clearly established that the hearing officer's findings, inferences, conclusions or decisions are:

(a) in violation of constitutional or statutory provisions;

(b) in excess of the statutory authority;

(c) in violation of the state plan, or a department or program rule;

(d) upon unlawful procedure;

(e) affected by other error of law;

(f) clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or

(g) unreasonable, arbitrary or capricious or characterized by an abuse of discretion or a clearly unwarranted exercise of discretion.

(6) Within thirty (30) calendar days after the hearing officer's initial decision and recommendation is received, or within twenty (20) calendar days after the receipt of an amended decision and recommendation of the hearing officer in the event of a remand, whichever is longer, the Commissioner shall enter a final written decision and order. The final decision and order shall include findings and grounds therefore and shall be communicated to the parties in the same manner as a notice of proposed action. If the Commissioner does not enter a separate written final decision and order within the time frames stated above, unless otherwise extended by agreement of the parties in writing, the decision and recommendation of the hearing officer shall be deemed the final order of the Commissioner by operation of law.

Ala. Admin. Code r. 70-X-5-.09

Filed May 20, 1992. Repealed and New Rule: Filed June 5, 2009; effective July 10, 2009.

Author: Irene B. Collins, Commissioner

Statutory Authority:Code of Ala. 1975, §§ 38-3-8 through 38-3-9; 41-22-12 through 41-22-16.