Section 7 AAC 41.423 - Intentional program violation hearings(a) If the department believes that a family or provider has committed an intentional program violation under 7 AAC 41.410 the department will refer the matter to the office of administrative hearings (AS 44.64.010) for scheduling of an intentional program violation hearing. After the office of administrative hearings sets a date and time for the hearing, the department will provide the family or provider with a written notice at least 30 calendar days before the scheduled date of the intentional program violation hearing. In the notice the department will include (1) the date, time, and location of the hearing;(2) the accusations against the family or provider;(3) a summary of the evidence to be presented by the department, and how and where the evidence can be examined;(4) a description of the availability of a hearing postponement, as specified in (b) of this section;(5) an explanation of the consequences of failure to appear at the hearing, as provided in (c) of this section;(6) instructions on how to claim good cause for failure to appear at the hearing, as provided in (d) of this section;(7) an explanation of the intentional program violation and penalties as provided in 7 AAC 41.425 as applicable to the case scheduled for hearing;(8) a statement that the hearing does not preclude the state or federal government from prosecuting the family or provider for an intentional program violation in a civil or criminal court action, or from recovery of an overpayment;(9) an explanation of the public resources available that may provide free legal representation, and that the department is not responsible for providing legal representation;(10) an explanation that the hearing may be held face-to-face or by telephone, at the administrative law judge's discretion;(11) a statement that the accused family or provider has the right to remain silent and that anything said or signed by the family or provider concerning the accusations can be used against the accused family or provider in the hearing or a court of law; and(12) a statement that the accused family or provider may waive the right to the intentional program violation hearing; in the statement the department will inform the family or provider (A) of the date by which a signed waiver-of-rights form must be received by the department;(B) that a waiver of rights will result in penalties up to and including disqualification, benefit reduction, and repayment obligations, even if the accused does not admit to the facts as represented by the department; and(C) that the family or provider may specify on the waiver-of-rights form whether the family or provider admits to the facts as represented by the department.(b) An accused family or provider may request one hearing postponement of no more than 30 calendar days after the date of the first scheduled intentional program violation hearing if the request for postponement is received by the department at least 10 calendar days before the first scheduled hearing,(c) If an accused family or provider fails to appear at an intentional program violation hearing, the administrative law judge shall (1) hold the hearing without the accused family or provider,(2) consider the evidence based on the information provided by the department; and(3) determine if an intentional program violation was committed.(d) An accused family or provider who fails to appear, or have a representative appear, for a scheduled intentional program violation hearing has 10 calendar days after the date of the scheduled hearing to contact the office of administrative hearings, provide evidence of good cause for failure to appear, and request that a new hearing be scheduled. If the administrative law judge determines that the family or provider had good cause for not appearing, the administrative law judge shall schedule a new hearing and reopen the hearing record.(e) An administrative law judge with the office of administrative hearings shall conduct a hearing under this section. After hearing the facts of the case and examining the evidence, the administrative law judge shall decide whether a family or provider has committed an intentional program violation. The administrative law judge shall base a determination of intentional program violation on clear and convincing evidence that the family or provider committed, and intended to commit, an intentional program violation.(f) At a hearing, the accused family or provider may choose self-representation, or to Be represented by an attorney or any other person who may be helpful in defense of the accusation. If the accused family or provider chooses to be represented at the hearing by an attorney or any other person, the representative of the accused family or provider shall submit a completed permission form provided by the department, that is signed by the accused family or provider and the family's or provider's representative. For purposes of this subsection, the signature of an accused family is the signature of the accused individual within the family,(g) The accused family or provider or the accused family's or provider's representative may (1) examine the contents of the family's or provider's file, and all documents and records to be used at the intentional program violation hearing, at a reasonable time before the date of the hearing, and during the hearing;(2) at the family's or provider's own expense, present at the hearing witnesses and documents pertinent to the case;(3) establish relevant facts and circumstances;(4) present oral and written arguments pertinent to the case; and(5) question or refute any testimony or evidence, including the opportunity to cross-examine witnesses.(h) If the accused family or provider is notified in advance, a hearing under 7 AAC 49 for a family or a hearing for a provider under 7 AAC 41.443 that is based on the same or related circumstances as an intentional program violation hearing under this section may be combined by the administrative law judge into a single hearing. (i) The administrative law judge shall render a decision within 90 calendar days after the date the accused family or provider received the notice of the hearing in accordance with (a) of this section. However, if the accused family or provider or the family's or provider's representative is granted a postponement, the 90-day time limit is extended for the same number of days that the hearing is postponed.(j) If the administrative law judge determines that a family or provider has committed an intentional program violation, no further administrative remedy exists. However, the family or provider is entitled to seek relief in a court having appropriate jurisdiction. Eff. 1/5/2017, Register 221, April 2017Authority:AS 47.05.010
AS 47.25.001