Title 7 . Health and Social Services

Chapter 45 . Hearings

Section 585. Administrative disqualification hearing

7 AAC 45.585. Administrative disqualification hearing

(a) The department will provide written notice of an administrative disqualification hearing to an individual believed to have committed an intentional program violation, as defined in 7 AAC 45.580, at least 30 calendar days before the date the hearing is scheduled. The notice will include

(1) the date, time, and location of the hearing;

(2) the accusations against the individual;

(3) a summary of the evidence to be presented by the department, and how and where the evidence can be examined;

(4) a description of the availability of a hearing postponement, as specified in (b) of this section;

(5) an explanation of the consequences of failure to appear at the hearing, as provided in (c) of this section;

(6) instructions on how to claim good cause for failure to appear at the hearing, as provided in (d) of this section;

(7) an explanation of the disqualification penalties as provided in AS 47.27.015 (e), and will identify the penalty applicable to the case scheduled for hearing;

(8) a statement that the hearing does not preclude the state or federal government from prosecuting the individual for an intentional program violation in a civil or criminal court action, or from recovery of an overpayment;

(9) an explanation of the public resources available that may provide free legal representation, and that the department is not responsible for providing legal representation;

(10) an explanation that the hearing may be held face-to-face or by telephone, at the hearing officer's discretion;

(11) a statement of the accused individual's right to remain silent concerning the accusations, and that anything said or signed by the individual concerning the accusations can be used against the accused individual in the hearing or a court of law;

(12) a statement that the accused individual may waive the right to the disqualification hearing; the statement will inform the individual

(A) of the date by which a signed waiver-of-rights form must be received by the department;

(B) that a waiver of rights will result in disqualification of the accused and a reduction in the ATAP benefit paid to the individual's assistance unit during the period of disqualification, even if the accused individual does not admit to the facts as represented by the department; and

(C) that the individual may specify on the waiver-of-rights form whether the individual admits to the facts as represented by the department.

(b) An accused individual may request one hearing postponement of no more than 30 calendar days from the date of the first scheduled administrative disqualification hearing if the request for postponement is received by the department at least 10 calendar days before the first scheduled hearing.

(c) If an accused individual, or the individual's representative, fails to appear at an administrative disqualification hearing, the hearing officer shall

(1) hold the hearing without the accused individual or the individual's representative;

(2) carefully consider the evidence based on the information provided by the department; and

(3) determine if an intentional program violation was committed.

(d) An accused individual who fails to appear, or have a representative appear, for a scheduled administrative disqualification hearing has 10 calendar days after the date of the scheduled hearing to contact the department, provide evidence of good cause for failure to appear, and request that a new hearing be scheduled. If the hearing officer determines that the individual did have good cause for not appearing, the hearing officer shall schedule a new hearing and reopen the hearing record.

(e) A hearing officer is an impartial individual appointed by the department or the Department of Law who was not involved in the accusation. After hearing the facts of the case and examining the evidence, the hearing officer shall decide whether an individual has committed an intentional program violation. The hearing officer shall base a determination of intentional program violation on clear and convincing evidence that the individual committed, and intended to commit, an intentional program violation as defined in 7 AAC 45.580.

(f) At a hearing, the accused individual may choose self-representation, or to be represented by an attorney or any other person who may be helpful in defense of the accusation. If the accused individual chooses to be represented at the hearing by an attorney or any other person, the accused individual shall submit a completed permission form provided by the department, that is signed by the accused individual and the individual's representative.

(g) The accused individual, or the individual's representative, will have an opportunity to

(1) examine the contents of the individual's file, and all documents and records to be used at the administrative disqualification hearing, at a reasonable time before the date of the hearing, and during the hearing;

(2) at their own expense, present at the hearing witnesses and documents pertinent to the case;

(3) establish pertinent facts and circumstances;

(4) present oral or written arguments pertinent to the case; and

(5) question or refute any testimony or evidence, including the opportunity to cross-examine witnesses.

(h) If the hearing involves a medical issue raised by the accused, and the hearing officer considers it necessary to have a medical assessment, the medical assessment will be obtained at department expense and made part of the hearing record.

(i) As long as the accused is notified in advance, a fair hearing under 7 AAC 49 and an administrative disqualification hearing under this section that are based on the same or related circumstances may be combined by the hearing officer into a single hearing.

(j) The hearing officer shall render a decision within 90 calendar days after the date the accused individual received the notice of the hearing in accordance with (a) of this section; however, if the accused individual, or the individual's representative, is granted a postponement, the 90 day time limit will be extended for the same number of days that the hearing is postponed.

(k) If the hearing officer rules that an individual has committed an intentional program violation, as described in 7 AAC 45.580, no further administrative remedy exists; however, the individual is entitled to seek relief in a court having appropriate jurisdiction.

History: Eff. 8/6/92, Register 123; am 10/1/97, Register 143; am 1/7/2005, Register 173

Authority: AS 47.05.010

AS 47.27.005

AS 47.27.080