Miss. Code. tit. 18, pt. 2, ch. 1, 18-2-1-IX, att. 18-2-1-IX-B - De-designation Procedure

DUE PROCESS PROCEDURES FOR THE INITIATION OF ADVERSE ACTIONS AFFECTING AN AREA AGENCY ON AGING OR PLANNING AND SERVICE AREA

A. The designation of an Area Agency on Aging (AAA) may be withdrawn pursuant to the authority granted unto the Executive Director of the Mississippi Department of Human Services (MDHS) by the Mississippi Constitution and the Mississippi Legislature as set forth in Miss. Code Ann. § 43-1-1 et seq (1972, as amended) and, more specifically, by the authority granted unto the Director of the MDHS Division of Aging and Adult Services (DAAS), acting as the Director of the State Unit on Aging (SUA), by the Older Americans Act of 1965 (as amended in 2006) (Public Law 109-356), 42 USC § 3025(b)(5)(C) and 45 CFR § 1321.

B. The revocation of the designation of a AAA is referenced in the Older Americans Act of 1965 (as amended in 2006) (Public Law 109-356), 42 USC § 3025(b)(5)(C) and 45 CFR § 1321.35. MDHS due process is also referenced in the Mississippi Administrative Procedures Law, Miss. Code Ann. § 25-43-1 et seq (1972, as amended), in MDHS Administrative Policy AP-18 and in the MDHS Subgrantee Manual.

C. In accordance with 45 CFR § 1321.35(a), in carrying out §305 of Title III Part A of the Older Americans Act, the State agency shall withdraw the area agency designation whenever it, after reasonable notice and opportunity for a hearing, finds that:

1. An area agency does not meet the requirements of this part;

2. An area plan or plan amendment is not approved;

3. There is substantial failure in the provisions or administration of an approved area plan to comply with any provision of the Act or of this part or policies and procedures established and published by the State agency on aging (SUA); or

4. Activities of the area agency are inconsistent with the statutory mission prescribed in the Act or in conflict with the requirement of the Act that it function only as an area agency on aging.

D. In accordance with the Older Americans Act of 1965 (as amended in 2006) (Public Law 109-356) §307(a)(5), §306(e) and §305(b)(5)(C), the SUA shall provide an opportunity for a hearing:

1. To a AAA when the SUA disapproves the Area Plan or Plan Amendment submitted by a AAA;

2. To a AAA when the SUA proposes to withhold all or part of a AAA's funds for failure to comply with federal or state laws, or with Area Plan requirements, or with Subgrantee Agreement conditions;

3. To any applicant when the SUA denies their application for designation as a Planning and Service Area or as a AAA, or when notice is given of the SUA's intention to withdraw the designation of a AAA; or

4. When the SUA designates a new planning and service area or otherwise affects the boundaries of a Planning and Service Area.

E.DUE PROCESS PROCEDURES START HERE.

These due process procedures pertain specifically to the initiation of de-designation proceedings against a AAA, but these same procedures are to be used for any adverse action affecting a AAA or Planning and Service Area.

When the conditions exist that warrant the initiation of action to withdraw the designation of a AAA, the MDHS, SUA and AAA will take the following steps:

1. The MDHS Executive Director will issue an Executive Order for the Initiation of Action to Withdraw the Designation of the AAA to the SUA Director.

2. The SUA will provide a plan to the Administration on Aging for the continuity of area agency functions and services in the affected Planning and Service Area and designate a new AAA in the Planning and Service Area in a timely manner. This may also involve dividing the affected Planning and Service Area among existing area agencies in order to provide the requisite continuity of services.

3. The SUA Director will deliver to the AAA Director a Notice of Initiation of Action to Withdraw the Designation of the AAA. This SUA Director's notification letter will act as the official notice that the initiation of action to withdraw the designation of the AAA has begun; it will outline and document the need for these actions and reasons for the withdrawal of their designation; it will inform the AAA of its right to have a public hearing on this matter; it will explain that area agencies on aging, service providers and concerned older individuals from the Planning and Service Area are welcome to participate in the process; and it will inform the AAA of its right to appeal the final decision of the MDHS Executive Director to the Assistant Secretary for Aging of the Administration on Aging (see the Older Americans Act of 1965 (as amended in 2006) (Public Law 109-356), Title III, Part A, §305(b)(5)(C)(i)(I), 42 USC § 3025(b)(5)(C) and 45 CFR § 1321.35). The SUA Director will deliver this Notice of Initiation of Action to Withdraw the Designation of the AAA and a copy of these Due Process Procedures to the AAA Director.

4. If an emergency shutdown of all AAA functions is required, the affected AAA shall voluntarily deliver, or in the alternative, the SUA will confiscate without the need for a subpoena or proper judicial order, any and all pertinent electronic and hardcopy data, files, information, documents, manuals, records, reports, correspondence and any and all other property that belong to MDHS and the SUA from all of the AAA offices and satellite offices. These items include any and all products from the AAA that were created in the process of conducting the business, projects and programs of acting as a AAA, whether directly or indirectly financed by or through MDHS or the SUA, regardless of the funding sources.

5. The AAA Director must respond to the SUA Director, in writing, within 15 days from the date of receipt of a copy of the SUA Director's Notice of Initiation of Action to Withdraw the Designation of the AAA (from step 3) and the Due Process Procedures. In this response, the AAA must declare their intentions whether they will concur, nonconcur, contest, challenge and/or rebut the SUA Director's decision to initiate action to withdraw their designation as the AAA in the Planning and Service Area in question. In this letter, the AAA Director must inform the SUA of whether or not the AAA requests a public hearing on this matter. If the AAA Director does not respond by the end of the allotted 15-day time period or declines the opportunity for a public hearing, go to step 7.

6. If a public hearing is requested by the AAA Director, the SUA Director will inform the AAA Director, in writing, at least 10 days before the date of the public hearing, of the specific date, time, location and other relevant facts concerning the public hearing, as well as place a notice in the Clarion Ledger, a newspaper with statewide coverage, at least 10 days before the date of the public hearing.

7. Within 10 days after the public hearing; or within 10 days after receiving notice that the AAA Director has declined the opportunity of having a public hearing; or if the AAA Director fails to respond to the SUA Director's notification letter by the end of the allotted 15-day response time period, the SUA Director will inform the MDHS Executive Director and the AAA Director within 10 days, in writing, of his final findings, opinions and decision concerning the withdrawal of the AAA's designation.

8. Within 10 days after receipt of the SUA Director's final decision letter (from step 7), the MDHS Executive Director, after examining all of the relevant facts and evidence, will issue in writing, to the SUA Director and the AAA Director, the MDHS Executive Director's Notice of Final Decision concerning the withdrawal of the AAA's designation. This formal Notice of Final Decision from the MDHS Executive Director is considered to be the MDHS/SUA final ruling on this matter in the state of Mississippi.

9. If the AAA Director does not concur with the conclusion, stated in the MDHS/SUA Notice of Final Decision, to withdraw their designation as the AAA in the Planning and Service Area in question, they have a right to appeal to the Assistant Secretary for Aging of the Administration on Aging (see the Older Americans Act of 1965 (as amended in 2006) (Public Law 109-356), Title III, Part A, §305(b)(5)(C)(i)(I), 42 USC § 3025(b)(5)(C) and 45 CFR § 1321.35).

10. The Assistant Secretary for Aging may affirm or set aside the decision of the State agency. If the Secretary sets aside the decision, and the State agency has taken adverse actions against the AAA, the State agency shall reverse and nullify those actions. If the Secretary affirms the MDHS/SUA decision, the actions of the withdrawal of designation proceedings stand as the unconditional final administrative action.

DUE PROCESS PROCEDURES END HERE

F. The same due process procedures, that are outlined in paragraph E above, will be followed when MDHS or the SUA initiates any adverse actions affecting a AAA or Planning and Service Area (see paragraph D above), such as withholding funding from a AAA or when adding or effecting changes to the boundaries of Planning and Service Areas.

Notes

Miss. Code. tit. 18, pt. 2, ch. 1, 18-2-1-IX, att. 18-2-1-IX-B