Title 4 . Education and Early Development

Chapter 65 . (Repealed)

Section 433. Notice of appeal and request for hearing

4 AAC 65.433. Notice of appeal and request for hearing

(a) An aggrieved party may file a notice of appeal and request a formal hearing on the decision of the office under this section

(1) if the child care programs office does not grant the relief sought under 4 AAC 65.432; or

(2) if a family or provider is aggrieved by a decision of the child care programs office made under 4 AAC 65.411 or 4 AAC 65.415.

(b) A request for hearing under this section must be in writing, delivered to the department by certified mail, and postmarked no later than 15 days after the date the aggrieved party received the decision of the child care program office. The request must set out

(1) the list of exhibits the aggrieved party intends to introduce at the hearing;

(2) the names of persons to be called as witnesses at the hearing; and

(3) whether the aggrieved party will be represented by counsel.

(c) Within 15 days after receipt of the request for hearing made under (a) of this section, the commissioner will appoint a hearing officer, who is not an employee of the department, to render a recommended decision to the commissioner.

(d) Within five days after the appointment of a hearing officer, the hearing officer will schedule a hearing on the matter. Unless all parties to the appeal agree to a later date, the hearing will be held within 30 days after the date of appointment of the hearing officer.

(e) The hearing will be recorded and will be conducted according to the following rules of evidence:

(1) oral evidence shall be taken only on oath or affirmation;

(2) each party may call and examine witnesses, introduce exhibits, cross-examine opposing witnesses on matters relevant to the issues even though those matters were not covered in the direct examination, impeach a witness, and rebut the evidence against that party;

(3) the hearing will not be conducted according to technical rules of evidence; all relevant evidence may be admitted if it is the sort of evidence on which a reasonable person would rely in the conduct of serious affairs; hearsay evidence may be used to supplement or explain direct evidence but is not sufficient by itself to support a finding, unless it would be admissible over objection in a civil action; the rules of privilege are effective to the same extent that they are recognized in a civil action; irrelevant and unduly repetitious evidence may be excluded;

(4) the burden of proof is on the party making the appeal; the burden of persuasion is by a preponderance of the evidence.

(f) The hearing officer shall submit a proposed decision to the commissioner for final action within 30 days after the close of the record of the hearing. The proposed decision shall determine whether the aggrieved party has proved, by a preponderance of the evidence, that the decision under 4 AAC 65.432 was

(1) arbitrary and capricious;

(2) based upon unlawful procedure; or

(3) not supported by applicable statutes or regulations.

(g) Within 15 days of receipt of the hearing officer's proposed decision, the commissioner shall notify the aggrieved party of the commissioner's decision to either adopt, modify, or reject the hearing officer's proposed decision, or decision to remand the matter to the hearing officer with instructions.

(h) The commissioner's decision to adopt, modify, or reject the hearing officer's proposed decision under (g) of this section constitutes a final administrative decision subject to appeal to the superior court for review in the manner provided under AS 44.62.560 .

History: Eff. 3/8/2002, Register 161; am 11/10/2002, Register 164

Authority: AS 14.07.060

AS 14.38.100

Editor's note: For the purposes of 4 AAC 65.433, the mailing and physical address for the child care program office is Department of Education and Early Development, Child Care Program Office, 619 E. Ship Creek Avenue, Suite 230, Anchorage, Alaska 99501-2341.