Current through Register Vol. 48, No. 14, April 8, 2022
A. A parent may
appeal to the Board any administrative decision the Department makes pursuant
to Arizona Revised Statutes, Title 15, Chapter 19, Article 1, including
determinations of allowable expenses, removal from the Program or enrollment
resolution of an appeal during which an account is suspended, a parent may
request a stay on the account suspension.
1.a. Included in the
request for a hearing filed pursuant to R7-2-1511(F), a parent may file a
request to the Board to stay an account suspension. Such request shall be in
writing and shall address the matters stated in the Department's notice in
2.b. The Department may
file a response to the parent's request to stay the suspension of the account.
Such response shall be filed with the Board within five business days of
receipt of the parent's request to stay the suspension. Such response shall be
in writing and shall address the matters stated in the parent's
Within 10 business
days after receipt of the Department's response, the executive director of the
Board or his/her designee shall make a written determination to either:
Proceed with suspension of the account, or
b.ii. Stay all or part of
the suspension of the account if there is a reasonable probability that the
appeal will be upheld or that the stay is in the best interest of the State. If
a stay is issued, the Department may not withhold funding or contract renewal
for the account holder on account of the appealed administrative decision
during the stay unless directed by the Board to do so.
executive director or his/her designee shall provide the parent and the
Department with a written copy of the Stay determination including the basis
for the determination.
5. The request for or issuance of
a suspension does not toll the 60 day period in which the administrative
hearing is to be held.
C. Notwithstanding any other Section, the
Department may, with the agreement of the account holder on the resolution,
informally resolve a disputed administrative action at any time without a
formal appeal pursuant to this Article.
D. The Department, on its website and in the
parent handbook, shall provide information on the Board's appeals process.
The Department shall provide
parents with written notice of an appealable action taken by the Department.
Such written notice shall inform the parents of his/her right to request a
hearing on the action and shall include the following:
1. The statute or rule that is alleged to
have been violated or on which the action is based;
2. Identify, with reasonable particularity,
the nature of any alleged violation or action;
3. Include a description of the parent's
right to request a hearing on the appealable agency action; and
4. Include a description of the parent's
right to request an informal settlement conference.
Within 30 days after being served with
notice of an appealable action, a parent may file a request for a hearing. The
notice must be in writing and shall state the following:
1. The identity of the party requesting the
2. The mailing address of
the party requesting the hearing,
3. The agency that rendered the decision
related to the appealable action,
4. Identification of the action being
5. A concise statement
of the reasons for the request for hearing,
6. A copy of the administrative decision
issued by the Department, and
Any other information or documentation requested by the Board applicable to the
good cause is submitted, the Board may accept a request for a hearing that is
not filed in a timely manner. Such request must be made in writing and state
the basis for not filing the request on time.
H. If a parent requests a hearing pursuant to
R7-2-1511(F) and includes all of the items listed in R7-2-1511(F), the Board
shall schedule a hearing.
Board shall provide all parties with a written notice at least 20 days prior to
the date set for the hearing. The notice shall include:
1. A statement of the time, place and nature
of the hearing;
2. A statement of
the legal authority and jurisdiction under which the hearing is to be
3. A reference to the
particular sections of the statutes and rules involved; and
4. A short and plain statement of the matters
asserted. If a party is unable to state the matters in detail at the time the
notice is served, the initial notice may be limited to a statement of the
issues involved. Thereafter upon application a more definite and detailed
statement shall be furnished.
J. All notices shall be served via personal
delivery or certified mail, return receipt requested or by any other method
reasonably calculated to effect actual notice on the agency and all parties to
the action at each party's last address of record.
K. A hearing on the appealable action shall
be held after a complete appeal is filed and may be advanced or delayed on the
agreement of the parties or on a showing of good cause.
Informal Settlement Conference
1. A parent may request an informal
settlement conference be held with the Department. The request shall be in
writing and shall be filed with the Department, and a copy provided to the
Board, no later than 10 days after the Board provides notice that the appeal is
complete. The Department shall hold an informal settlement conference within
seven days after receiving the request. The Department shall notify the Board
of the result of the informal settlement conference within five days of the
conclusion of the informal settlement conference or prior to the hearing date,
whichever is first. The request for an informal settlement conference does not
alter the date the hearing is to be held.
2. If an informal settlement conference is
held, a person with the authority to act on behalf of the Department must
represent the Department at the conference. The Department representative shall
notify the parent in writing that statements, either written or oral, made at
the conference, including a written document, created or expressed solely for
the purpose of settlement negotiations are inadmissible in any subsequent
M. Informal disposition may be made by
stipulation, agreed settlement, consent order or default.
1. All hearings shall be conducted before a
hearing officer pursuant to this Section.
2. The parties to the appealable agency
action have the right to be represented by legal counsel or to proceed without
counsel, to submit evidence and to cross-examine witnesses.
The Board shall schedule a prehearing
conference on request of any party. Either party may waive appearance by filing
the request in writing to the Board no later than five days before the
prehearing conference. A prehearing conference may be held for the following
a. Clarify or limit procedural,
legal or factual issues;
Consider amendments to any pleading;
c. Identify and exchange lists of witnesses
and exhibits intended to be introduced at the hearing;
d. Obtain stipulations or rulings regarding
testimony, exhibits, facts or law;
e. Schedule deadlines, hearing dates and
locations if not previously set; or
f. Allow the parties opportunity to discuss
record in a contested case shall include:
All pleadings, motions and interlocutory rulings.
b. Evidence received or considered.
c. A statement of matters officially
d. Objections and offers
of proof and rulings thereon.
Proposed findings of fact and conclusions of law and exceptions
f. Any decision, opinion,
recommendation or report of the hearing officer.
g. All staff memoranda, other than privileged
communications, or data submitted to the hearing officer in connection with its
consideration of the case.
5. Findings of fact shall be based
exclusively on the evidence and on matters officially noticed.
A participant of record shall not
communicate, either directly or indirectly, with the Hearing Officer about any
substantive issue in a pending matter unless:
a. All participants of record are
b. Communication is during
a scheduled proceeding, where an absent participant of record fails to appeal
after proper notice; or
Communication is by written motion with copies to all participants of
7. The Hearing
Officer may postpone, continue, or cancel a hearing for good cause upon the
written request of either party. The participant of record must establish good
cause for the written request.
For good cause shown, the hearing officer may grant continuances and extensions
of time for filing notices or other documents.
9. The Hearing Officer may direct a party to
submit additional memorandum or information within a reasonable period of time.
The Hearing Officer shall grant the opposing party a reasonable period of time
to respond to the additional memorandum or information.
10. Upon written request, any party may
request an opportunity to compare a document copy with the original. The
Hearing Officer may grant the request if the record establishes good
4.1. All hearings shall be
recorded. The Board shall secure either a court reporter or an electronic means
of producing a clear and accurate record of the proceeding.
hearing may be conducted in an informal manner and without adherence to the
rules of evidence required in judicial proceedings. Neither the manner of
conducting the hearing nor the failure to adhere to the rules of evidence
required in judicial proceedings shall be grounds for reversing any
administrative decision or order if the evidence supporting the decision or
order is substantial, reliable and probative.
3. The parties may submit proposed findings
of fact and conclusions of law prior to the hearing. The hearing officer may
require that the parties submit proposed findings of fact and conclusions of
law prior to the hearing or at the close of evidence.
4. All interested parties shall be ready and
present with all witnesses and documents at the time and place specified in the
notice of hearing and shall be prepared at such time to dispose of all issues
and questions involved in the appeal. An interested party shall arrange for the
presence of that party's witnesses at a hearing.
5. If a party fails to appear at a hearing,
the hearing body may proceed with the presentation of the evidence of the
6. The Hearing
Officer conducting the hearing may close the hearing to other than interested
parties to the extent necessary to protect the interests and rights of the
interested parties, within the requirements of A.R.S. §§
7. The Hearing Officer may conduct all or
part of the hearing by telephone other electronic means, as long as each party
has an opportunity to participate in the entire proceeding as it takes
8. Conduct at any hearing
that is disruptive or shows contempt for the proceeding shall be grounds for
exclusion from further participation.
1. All witnesses shall testify under oath or
affirmation. The hearing officer shall administer oaths and
2. The hearing
officer shall afford interested parties an opportunity either to present oral
or documentary evidence, or both, and to conduct such cross-examination as may
be required for a full and fair disclosure of the facts. The hearing officer
may limit the time of oral argument.
3. The hearing officer may choose to admit
evidence, a witness' deposition, or a witness' affidavit and determine
evidentiary weight of all submitted evidence. The party taking a witness'
deposition or affidavit shall bear all deposition-related or affidavit-related
costs. The hearing officer shall make rulings necessary to prevent
argumentative, repetitive, or irrelevant questioning, to exclude evidence the
hearing officer determines to be irrelevant, immaterial or unduly repetitious,
and to expedite the examination to the extent consistent with the disclosure of
all relevant testimony and information.
Q. Stipulations. Parties to any contested
case may stipulate, in writing, agreement upon any matter involved in the
proceeding. If approved by the hearing officer, agreement on matters of
procedure shall be binding upon the parties to the stipulation. No substantive
matter agreed to by the parties shall be binding upon the Board unless
incorporated into the decision of the Board.
1. The hearing officer
shall issue a written recommendation within 20 days after the hearing is
concluded. The written recommendation shall contain a concise explanation of
the reasons supporting the recommendation, including the findings of fact and
conclusions of law.
2. The hearing
officer shall serve a copy of the recommendation on the Board. On request of
the Board, the hearing officer shall also transmit to the Board the record of
the hearing as described in A.R.S. §
At one of the following two regularly
scheduled meetings of the Board after the hearing officer sends a copy of the
recommendation to the Board, the Board may review the recommendation and
accept, reject or modify it.
a. If the Board
declines to review the hearing officer's recommendation, the Board shall serve
a copy of the recommendation on all parties.
If the Board rejects or modifies the
recommendation, the Board shall serve on all parties, a copy of the hearing
officer's recommendation with the rejection or modification and a written
justification setting forth the reasons for the rejection or modification of
each finding of fact or conclusion of law.
c. Except as otherwise provided in
this subsection, if the Board does not accept, reject or modify the
administrative law judge's decision within 30 days after the date that OAH
sends a copy of the administrative law judge's decision to the Board, as
evidenced by receipt of such action by OAH by the thirtieth day, OAH shall
certify the administrative law judge's decision as the final administrative
d. If the Board meets monthly or
less frequently and if OAH sends the administrative law judge's decision at
least 30 days before the next meeting of the Board and if the Board does not
accept, reject or modify the administrative law judge's decision at the next
meeting of the Board, as evidenced by receipt of such action by OAH within five
days after the meeting, OAH shall certify the administrative law judge's
decision as the final administrative decision.
The Board shall provide all
parties with at least 20 days written notice of the date, time and location of
the public meeting at which the Board will consider the hearing officer's
5. A copy of the administrative
law judge's decision is sent on personal delivery of the decision or five days
after the decision is mailed to the Board.
6. A party may appeal a final
administrative decision pursuant to A.R.S. Title 12, Chapter 7, Article 6,
except that if a party has not requested a hearing on receipt of a notice of
appealable agency action pursuant to A.R.S. §
the appealable agency action is not subject to judicial
review of decisions
1. A party may file a
motion for rehearing or review within 10 days after service of the final
administrative decision. The motion shall be in writing and state the basis
upon which the rehearing or review is requested. The motion shall be filed with
the Board and a copy provided to the opposing party. When a motion of rehearing
is based on new evidence, the new evidence shall be served to the Board with
the written motion.
2. The opposing
party may file a response to the motion for rehearing within 15 days after the
date the motion for rehearing is filed. The response shall be in writing and
address the basis upon which the rehearing or review is requested. The motion
shall be filed with the Board and a copy provide to the moving party.
kh A rehearing of a final administrative
decision by the Board may be granted for any of the following causes materially
affecting the moving party's rights:
as provided for in R7-2-1511(O)(2), irregularity in the administrative
proceedings of the hearing, or abuse of discretion, whereby the moving party
was deprived of a fair hearing;
Misconduct of the hearing officer; or
c. Newly discovered materials which could not
with reasonable diligence have been discovered and produced at the
4. Service is
complete on personal service or five days after the date the final
administrative decision is mailed to the party's last known address.
5. After a hearing has been held and a final
administrative decision has been entered a party is not required to file a
motion for rehearing or review of the decision in order to exhaust the party's