Section 460IAC2-4-30. Formal administrative review; full evidentiary hearing procedures

   (a) This section controls proceedings governed by IC 4-21.5 for which the director of DDRS is the ultimate authority.

  (b) An affected person who is aggrieved by a determination of the director of BVIS, or the director's delegate, under section 29 of this rule may request:

(1) formal administrative review; and

(2) a full evidentiary hearing;

under IC 4-21.5 and this rule.

  (c) The director of DDRS is the ultimate authority for the state licensing agency and DDRS under IC 4-21.5, under IC 12-8-8-5 [IC 12-8-8 expired under IC 12-8-8-8. See IC 12-8-8.5].

  (d) As soon as practicable after the initiation of administrative review under this subsection, the director of DDRS shall appoint a hearing officer to conduct proceedings under IC 4-21.5 and this rule. The hearing officer shall be an impartial and qualified person who has no involvement either with the:

(1) agency action at issue in the proceeding; or

(2) administration or operation of the state licensing agency.

  (e) A licensed manager has the right to be represented by counsel at the manager's own expense.

  (f) Transportation, reader, or other communication services, if needed and requested, must be arranged for the licensed manager by the state licensing agency.

  (g) The hearing shall be held during regular business hours at:

(1) the state licensing agency; or

(2) such other location as the parties agree.

The hearing shall be open to the public.

  (h) The hearing officer shall notify the:

(1) parties, in writing, of the time and place of the hearing; and

(2) licensed manager of the manager's right to be represented by counsel at his or her own expense.

  (i) If the issues in the proceeding are not otherwise resolved, the hearing officer shall conduct a full evidentiary hearing. The hearing officer shall govern the:

(1) conduct of a hearing; and

(2) order of proof.

  (j) The hearing officer shall avoid delay, maintain order, and make sufficient record of the proceedings for a full and true disclosure of the facts and issues. To accomplish these ends, the hearing officer:

(1) shall have all powers authorized by law; and

(2) may make all procedural and evidentiary rulings necessary for the conduct of the hearing.

Unless inconsistent with IC 4-21.5 or this rule, the hearing officer may apply the Indiana Rules of Trial Procedure or the Indiana Rules of Evidence.

  (k) Both the licensed manager and the state licensing agency are entitled to:

(1) present oral or documentary evidence;

(2) submit rebuttal evidence; and

(3) conduct such examination and cross-examination of witnesses as may be necessary for a full and true disclosure of all facts bearing on the issues.

  (l) All papers and documents introduced into evidence at the hearing shall be filed with the hearing officer at the hearing, and a copy shall be provided to the other party. All such documents and other evidence submitted shall be open to examination by the parties, and opportunities shall be given to refute facts and arguments advanced on either side of the issues.

  (m) A transcript shall be made of the oral evidence and shall be made available to the parties. The state licensing agency shall:

(1) pay all transcript costs; and

(2) provide the manager with one (1) copy of the transcript.

  (n) The record required to be kept by a hearing officer under IC 4-21.5-3-14:

(1) commences when a proceeding is initiated; and

(2) includes the items described in IC 4-21.5-3-33.

  (o) The hearing officer shall issue a written recommended order within thirty (30) business days after the receipt of the official transcript. The recommended order shall be mailed promptly to the:

(1) licensed manager;

(2) state licensing agency; and

(3) ultimate authority of the agency.

  (p) The recommended order of the hearing officer shall set forth the:

(1) principal issues and relevant facts adduced at the hearing; and

(2) applicable provisions in law, regulation, and agency policy.

The order and decision shall contain findings of fact and conclusions with respect to each of the issues, and the reasons and basis therefor. The decision shall also set forth any remedial action necessary to resolve the issues in dispute.

  (q) Subject to the provisions of subsections (s) through (u), after a hearing officer issues a recommended order under this section, the director or the director's designee shall issue a final order within thirty (30) business days. The final order shall:

(1) affirm;

(2) modify; or

(3) dissolve;

the hearing officer's order. The director or the director's designee may remand the matter, with or without instructions, to the hearing officer for further proceedings.

  (r) In the absence of a party's objection or notice from the director of intent to review any issue related to the order under subsection (s) or (t), the director or the director's designee shall affirm the order.

  (s) To preserve an objection to an order of a hearing officer for judicial review, a party who is dissatisfied with the order must not be in default under IC 4-21.5 and must object to the order, in writing, that:

(1) identifies the basis of the objection with reasonable particularity; and

(2) is filed with the director responsible for reviewing the order within fifteen (15) days after the order is served on the party.

  (t) If an objection is filed, the director of DDRS or the director's designee will conduct proceedings to issue a final order. In these proceedings, the director or the director's designee shall afford each party an opportunity to present briefs. The director or the director's designee may:

(1) afford each party an opportunity to present oral argument;

(2) exercise the powers of a hearing officer to hear additional evidence under IC 4-21.5-3-25 and IC 4-21.5-3-26; or

(3) allow nonparties to participate in the proceeding in accordance with IC 4-21.5-3-25.

  (u) If no objection to the order of the hearing officer is filed, the director of DDRS or the director's designee may serve written notice of the director's intent to review any issue related to the order within thirty (30) days of service of the hearing officer's recommended order. The notice shall be served on all parties. The notice must identify the issues that the director or the director's designee intends to review. In these proceedings, the director or the director's designee shall afford each party an opportunity to present briefs. The director or the director's designee may:

(1) afford each party an opportunity to present oral argument;

(2) exercise the powers of a hearing officer to hear additional evidence under IC 4-21.5-3-25 and IC 4-21.5-3-26; or

(3) allow nonparties to participate in the proceeding in accordance with IC 4-21.5-3-25.

  (v) A final order disposing of the proceeding or an order remanding an order to the hearing officer for further proceedings shall be issued within thirty (30) days after the latter of the:

(1) date that the hearing officer's order was issued;

(2) receipt of briefs or written comments; or

(3) close of oral arguments.

After remand of an order to a hearing officer under this subsection, the hearing officer's subsequent order is also subject to review under this section.

  (w) The final order of the director of DDRS or the director's designee must:

(1) identify any differences between the director's final order and the recommended order issued by the hearing officer;

(2) include findings of fact or incorporate the findings of fact in the hearing officer's recommended order by express reference to the recommended order;

(3) inform a licensed manager that, if the licensed manager is dissatisfied with the final order issued by the director of DDRS or the director's designee, the licensed manager may request that an arbitration panel be convened by filing a complaint with the Secretary of the United States Department of Education, as authorized by 20 U.S.C. 107d-1 and 34 CFR 395.13; and

(4) inform a party of the right to seek judicial review of the final order pursuant to IC 4-21.5-5.

(Division of Disability and Rehabilitative Services; 460 IAC 2-4-30; filed Aug 23, 2001, 2:30 p.m.: 25 IR 75; filed Nov 26, 2007, 10:19 a.m.: 20071226-IR-460070254FRA; readopted filed Nov 30, 2007, 4:47 p.m.: 20071226-IR-460070733RFA; readopted filed Nov 20, 2013, 9:02 a.m.: 20131218-IR-460130457RFA)