A.
Scope:
The Mississippi Department of Human Services' regulations for
child placing agencies and residential child caring agencies allows for the
following:
1. Administrative Grievance
Hearing is afforded to all licensure applicants (in the event an application
for licensure or renewal of a license is denied or a license is
revoked).
2. Availability and
Conditions: a. The following conditions must be met before an Administrative
Grievance Hearing can be held:
i.First, it
must be a matter which can be reviewed as set out in number one (1) above.
ii. The aggrieved party must file
an appeal by submitting, in writing, a request for an administrative hearing
within ten (10) working days of the date of the Department's written notice of
action sent to the individual or agency.
iii. The hearing shall be held as soon as
possible, but no later than sixty (60) days after the receipt of the
request.
B.
Responsibilities of the Administrative Hearing
Officer:
1. Schedule a
date, time and place for the hearing
2. The Administrative Hearing Officer shall
send a written notice of the scheduled hearing via Certified Mail, Return
Receipt Requested, at least thirty (30) calendar days prior to the hearing date
to the petitioner. If the individual requesting the appeal cannot appear at the
time and location of the hearing, the individual must notify the hearing
officer within ten (10) calendar days of receipt of the hearing notice to give
explanations and make arrangements for rescheduling.
3. Notify the Department of the scheduled
hearing
4. Notify the Department of
any rescheduling
5. In the case of
a Grievance Hearing, prepare and file a written finding of facts and
recommendation and forward within thirty (30) days to the DFCS Division
Director. The decision of the Director is final.
6. Mail decisions to each party or attorney
via Certified Mail, Return Receipt Requested
C.
Responsibilities of the
Department:
Contact the Administrative Hearing Officer with information
regarding the request.
D.
Integrity of the Process:
All persons and their representatives participating in the
proceedings for hearing cases shall follow the process and procedure as set
forth herein, including but not limited to, being orderly, timely, ethical,
honest, decent and respectful of others in all aspects of these
proceedings.
E.
Ex parte
Communication:
Ex parte communication is prohibited. An
ex parte communication is an improper oral or written
communication to the Administrative Hearing Officer which is not on the record
and reasonable prior notice was not given to all parties. This does not include
discussions concerning strictly procedural matters, such as scheduling of the
hearing. No party or other person directly or indirectly involved in the
proceedings shall submit to the Administrative Hearing Officer any evidence,
argument, analysis, inquiry, or advice whether written or oral, regarding any
matter at issue in the proceedings unless such submission is being made part of
the record in the presence of all parties. This excludes Department files
regarding the case which the Administrative Hearing Officer will review in
preparation for the hearing.
F.
Withdrawal and
Dismissal:
The failure of a party to attend or participate in a
scheduled hearing after due notice will result in a dismissal of the appeal and
the presiding Hearing Officer may dismiss the hearing.
G.
Place of Hearing and
Knowledgeable Participants:
The hearings will be held in a location convenient for the
parties and where the Administrative Hearing Officer deems appropriate. The
Hearing Officer will have discretion in deciding location but shall take into
consideration the location of the parties to be heard. The Hearing Officer may
require the presence of witnesses and evidence on behalf of the applicant,
licensee, or the Department. The parties are expected to make knowledgeable
participants and employees available where necessary. A party's witnesses
should, in general, know the file or record and be prepared to explain how it
supports that party's contentions. Each party shall file with the Hearing
Officer a list of witnesses they plan to call at least ten (10) calendar days
prior to the hearing. The list shall contain the following:
* Name(s)
* Current Residence/Address (city, phone number,
etc.)
* Brief description of
testimony
H.
Representation for Petitioner:
Any licensee or applicant may appear in person or be
represented by an attorney at the licensee or applicant's own
expense.
I.
Department's Legal Representation:
The Department shall be represented by a Special Assistant
Attorney General.
J.
Disruptive Persons:
The Administrative Hearing Officer shall have authority to
take reasonable steps to maintain the decorum of the hearing, including
clearing the hearing room of any person who is disruptive.
K.
Conduct of
Hearing:
1. The
Administrative Hearing Officer is in charge of proceedings. The Mississippi
Rules of Evidence shall be relaxed for these Administrative Hearings. The
Administrative Hearing Officer has the authority to examine witnesses and rule
on admissibility of evidence. The Administrative Hearing Officer also has the
authority to establish reasonable time limits for conducting individual
hearings and requests for additional information. The Administrative Hearing
Officer has the authority to issue any orders necessary to enforce his/her
rulings.
2. Subject to the
Administrative Hearing Officer's rulings, opportunity must be given to all
parties to respond and present evidence and argument on all issues involved.
Also, the parties will have an opportunity to call any witnesses desired, but
within limits set by the Administrative Hearing Officer.
3. The Administrative Hearing Officer may
grant a postponement or continue the hearing for just cause. A motion for
continuance of the hearing must be in writing and must be filed with the
Administrative Hearing Officer. Once the action has proceeded to a hearing, no
continuance may be granted without the consent of all parties
involved.
4. An audio recording
will be made of each hearing.
5.
The parties of the hearing may conduct cross-examinations required for a full
and true disclosure of the facts.
6. Before or during the hearing, the
Administrative Hearing Officer may call or request any party to call a witness
or witnesses that the Hearing Officer believes necessary to make a final
decision.
7. At the hearing, the
Department shall be the first to present all the evidence on its case-
in-chief. The appealing party shall follow in presenting the same.
8. Upon notifying the parties, the
Administrative Hearing Officer may communicate with Department employees who
have not participated in the hearing for the purpose of using the special
skills or knowledge of the Department and its staff in evaluating the evidence.
The employee's communication is not part of the hearing and need not be
recorded.
9. Hearings will not be
opened to the general public and will be as informal as reasonably possible,
keeping in mind the need to establish an orderly record. The Administrative
Hearing Officer will admit evidence unless it is determined to be clearly
irrelevant, immaterial, or unduly repetitious, so the parties should avoid
frequent objections to questions and documents. The parties may introduce
exhibits at the hearing after explaining to the Hearing Officer the necessity
of admitting the exhibit as evidence or for the purpose of
clarification.
10. At all hearings,
each party, witness, attorney, or other person must show proper dignity,
courtesy and respect for the Administrative Hearing Officer and others
participating in the hearing. The Administrative Hearing Officer is authorized
to act as he/she considers necessary and appropriate to maintain proper decorum
and conduct. Actions may include, but are not limited to recessing the hearing
to be reconvened at another time or location in Jackson, Mississippi or
excluding from the hearing any party, witness, or attorney for a period and
under the conditions that the Administrative Hearing Officer considers fair and
just.
L.
Order of Hearing Proceeding:
1. A general outline as to the conduct of a
contested case proceeding is offered here for the benefit of the parties.
However, a departure from this outline in order to expedite the matter or
ensure the fairness of a proceeding would not be a violation of this
section.
2. Administrative Hearing
Officer may confer with the parties prior to the hearing to explain the order
of proceedings, admissibility of evidence, to discuss the number of witnesses
and other matters.
3. The hearing
is called to order by the Administrative Hearing Officer.
4. Administrative Hearing Officer introduces
him/herself and gives a brief statement of the nature of the proceedings,
including a statement of the Administrative Hearing Officer's role in making
legal rulings.
5. Administrative
Hearing Officer calls upon the parties, their respective attorneys, and any
other officials who may be present at the hearing to introduce themselves for
the record.
6. Administrative
Hearing Officer may exclude witnesses from the hearing room except during their
testimony. If so, all witnesses are instructed not to discuss the case during
the pendency of the proceeding. Notwithstanding the exclusion of the witnesses,
parties will be permitted to stay in the hearing room along with their
respective attorneys.
7. Any
preliminary motions, stipulations, or agreed orders are presented.
8. Opening statements are allowed by both the
Department and the aggrieved party.
9. The Department calls witnesses and the
questioning proceeds as follows:
a.The
Department questions.
b. Aggrieved
party cross examines.
c. The
Department redirects.
d. Aggrieved
party re-cross examines.
e.
Administrative Hearing Officer questions.
10. Petitioner calls witnesses and
questioning proceeds as follows:
a.Aggrieved
party questions.
b. The Department
cross examines.
c. Aggrieved party
redirects.
d. The Department
re-cross examines.
e.
Administrative Hearing Officer questions.
11. After all evidence has been heard, the
Administrative Hearing Officer will adjourn the hearing.
M.
Recommended and Final
Decisions:
Following the adjournment of the grievance hearing for the
aggrieved party, the Hearing Officer will prepare a Recommended Decision.
Within thirty (30) days, the Recommended Decision of the Administrative Hearing
Officer will be forwarded only to the DFCS Division Director for review and
consideration. The Director may adopt the Recommended Decision or modify the
Recommended Decision. The Director shall subsequently forward the Final
Decision of the Department to the attorneys of record, or if the party is not
represented by an attorney, the Final Decision will be forwarded to that
party.
