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title-70•Alabama Administrative Code, Title 70 — Alabama Department of Senior Services, Formerly Alabama Commission on Aging
title-70Alabama Admin. Code Title 70Regulation1 gen 1900
The Alabama Department of Senior Services mission is to promote the independence and dignity of seniors through a comprehensive and coordinated system of quality services. The Department, through advocacy, leadership and program administration, prepares the State of Alabama for the changing demographics of aging.
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To the extent not otherwise defined within these rules and regulations or otherwise by law, the following definitions shall apply:
(a) Board. The Board of Directors for the Alabama Department of Senior Services. The Board serves in an advisory capacity to the Department.
(b) Commissioner. The Commissioner of the Department of Senior Services.
(c) Department. The Alabama Department of Senior Services.
(d) Area Agency. Area Agency on Aging as designated by the Department of Senior Services.
(e) Client. With the exceptions of the legal assistance program and the long-term care ombudsman program, a client is any individual who receives services through the Department or its service provider, contractor, grantee or subgrantee. With the exception of the legal assistance program and the long-term care ombudsman program, a client is any individual who receives services through an Area Agency or its service provider, contractor, grantee or subgrantee. Clients may also be referred to as "consumer" or "participant" for purposes of Department program administration.
(f) Service Provider. An entity that is awarded a subgrant, grant, contract or memorandum of understanding from an area agency to provide services or an entity that is awarded a subgrant, grant, contract or memorandum of understanding from the Department to provide services.
(g) Area Plan. Means the legally binding document submitted by an area agency to the Department of Senior Services in order to receive funding under the Older Americans Act. The Plan details the manner in which the area agency shall furnish a comprehensive and coordinated system of services for older persons throughout the planning and service area. The Plan also outlines the assurances and contractual obligations that the area agency intends to fulfill in exchange for the receipt of funding.
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(1) The Department serves as the State Unit on Aging pursuant to the Federal Older Americans Act of 1965, as amended.
(2) The Department is designated in Title 38 Chapter 3, Code of Ala. 1975, as the State Agency to administer all programs made available to Alabama under the Federal Older Americans Act of 1965, as amended. The Department shall administer these programs in conformity with Title 45, Chapter 13, Code of Federal Regulations and policy guidance issuances from the Administration on Aging of the U.S. Department of Health and Human Services.
(3) Federal regulations governing grants for State and Community Programs on Aging as published in the Federal Register, are applicable to all recipients of grants and contracts funded by the Older Americans Act, including the Department, area agencies and service providers. These Alabama administrative rules are intended to complement and clarify requirements, procedures and Departmental policies applicable to the Older Americans Act Programs and Services. As such, the Department adopts by reference all rules and regulations promulgated by the U.S. Administration on Aging as it pertains to the Older Americans Act.
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(1) The Department shall follow applicable rules and regulations of state agencies for programs administered by the Department (e.g. Home and Community Based Services for the Elderly and Disabled Waiver Program).
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(1) The Department has authority and responsibility to plan, develop and administer policy on programs for older persons and to provide a visible focal point for advocacy, coordination, priority setting, monitoring and evaluation of programs for older persons within the State. This includes, but is not limited to, responsibilities and requirements of the Older Americans Act of 1965 as amended.
(2) The Department is responsible for the designation of the Area Agency on Aging for each PSA in accordance with Title III, Section 305 (a)(E) of the Older Americans Act. If the Department initiates an action or proceeding to revoke the designation of an area agency, designate an additional planning and service area, divide the State into different planning and service areas; or otherwise affect the boundaries of the planning and service areas in the state, the affected parties may seek administrative remedies as provided for under these Department rules and the Alabama Administrative Procedure Act.
(3) The Department will develop, promulgate and revise a uniform format for the area agency's Area Plan.
(4) The Department will monitor the administration of each Area Plan.
(5) The Department will coordinate the development of programs and services of Titles III and VII of the Older Americans Act and establish policy and minimum standards.
(6) The Department will coordinate the administration of the SeniorRx Program.
(7) The Department will direct and administer other human services related programs as required, including but not limited to the State Health Insurance Assistance Program, the Senior Medicare Patrol (SMP), and the Senior Employment Program.
(8) The Department will ensure that available U.S. Department of Agriculture food, cash or a combination of food and cash is made available to nutrition service providers funded for the nutrition services program.
(9) The Department will coordinate the development of legal services for older individuals of the state.
(10) The Department shall establish reporting requirements for all programs for the purpose of acquiring programmatic and fiscal information for Federal and State data and analysis.
(11) Agencies, organizations and individuals affected by actions of the Department in carrying out these duties may seek review in accordance with the Alabama Administrative Procedures Act.
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The Commissioner is the designated agent for service of legal process. The Commissioner is the Secretary for purposes of the Alabama Administrative Procedure Act. Requests for information should be made to the Commissioner as follows:
Commissioner, Alabama Department of Senior Services
201 Monroe Street, Suite 350
Montgomery, Alabama 36130
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(1) "Public record" for the purpose of these rules means all department records which are reasonably necessary to record the business and activities required to be done or carried on by the department that the status and condition of such business and activities can be known to the public. Records which do not constitute "public records" include, but are not necessarily limited to, those received by a public officer in confidence, sensitive personnel records, applicant, client and patient records, complaints against persons deemed licensees of the department, pending criminal and quasi-criminal investigations and records, those matters entitled to statutory or common law privilege, and records the disclosure of which would be detrimental to the best interests of the public.
(2) Requests for inspection or copies, official or unofficial, of specific public records must be made in writing. Requested public records are available for inspection at Department headquarters during the business hours of 8 a.m. until 4 p.m., Monday through Friday. The Commissioner shall approve the availability of the requested records and, if approved, set an effective date that the records are made available for inspection. Inspection of public records shall be made upon such terms and conditions so as not to disrupt the orderly conduct of the department's affairs.
(3) Any person who desires to obtain copies of specific public records may forward a written request to the Commissioner, and, subject to their availability, will be supplied copies upon payment of the cost of copying, handling and postage, which costs will be estimated and set from time to time in the discretion of the Commissioner. Certified official copies of public records are available upon receipt of payment. Unofficial copies of public records are available in an electronic format. Electronic formats of public records are not considered certified official copies of the Department.
(4) In-person inspection of requested public records must be made within two weeks of the grant of the request or a new written request must be submitted.
(5) The Department is not required to disclose those types of information or documents that are exempt from disclosure by a federal agency under the Federal Freedom of Information Act.
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(1) For purposes of this section, authorized representative shall mean someone who has legal authority to act on behalf of an individual. The legal authority must grant authority to make decisions about health care.
(2) All client and applicant information acquired by a service provider, the Department or an area agency shall not be disclosed by the provider, the Department or the area agency in any form that identifies the person without the authorization of the client, applicant, or his or her designated authorized representative. Client and applicant information shall only be used and released for purposes directly related to the administration of Department programs. Use and release of personal identifiable information shall conform to applicable state and federal law and regulations.
(3) An applicant, client, or authorized representative may, upon reasonable notice received in writing and at a reasonable time during normal business hours, review all of the applicant's or client's records maintained by the Department relating to the grant, denial, or provision of services. A Department staff member shall be present during any review. The Department shall make all information in the case record available except:
(a) an applicant, client, or authorized representative may review only his or her own records;
(b) when the Department believes medical, psychological, or other information may be harmful to the individual, the information may not be released to the individual, but shall be provided through his or her authorized representative, a physician, or licensed or certified psychologist; and
(c) information obtained from another organization or agency may be released only under the conditions established by the outside agency, organization, or provider.
(4) All applicants and clients, or their authorized representatives, shall be informed of the confidentiality of records. Release of information must be by written authorization of the client or applicant or authorized representative and must include:
(a) the nature of the information to be released;
(b) designation of the parties to whom the information may be released;
(c) the specific purpose for which the information is sought to be released;
(d) designation of the agency or person authorized to disclose the information; and
(e) dates of initiation and termination of such authorization.
(5) Upon written consent of an individual or an individual's authorized representative, the Department may release information that could otherwise be released to that individual, to the client's designee.
(6) The Department may disclose information pertaining to an applicant, or client without consent of the individual to its employees, agents, and providers who have a need for access to the information.
(7) Except as authorized above, employees of the Department shall not divulge the contents of any records to any person, or testify in court or in an administrative hearing, nor release records without the consent of the individual unless served with an appropriate subpoena or process and ordered to do so by a judge, hearing officer, or other lawful authority.
(8) The Department or area agency shall not require a provider of legal assistance to reveal any information that is protected by attorney-client privilege.
(9) Information concerning any aspect of a complaint or information concerning a client of the long term care ombudsman program, shall be strictly confidential and shall not be disclosed without the valid and duly executed authorization of the client and a court order signed by a judge.
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(1) The Commissioner may issue declaratory rulings to any person substantially affected by a rule with respect to the validity of the rule, or with respect to the applicability to any person, property, or state of facts of any rule or statute enforceable by the Department, or with respect to the meaning and scope of any order of the Department. Such rulings shall be issued provided:
(a) The petitioner shows that he/she is substantially affected by the rule in question;
(b) Sufficient facts are supplied in the written request to permit the Commissioner to make a valid determination; and
(c) The request arises from an actual question or controversy.
(2) In order to be considered, a petition for a declaratory ruling shall contain the following minimum information:
(a) A title reflecting that the petition seeks a declaratory ruling on a rule or rules.
(b) The Petitioner's Name, Address, and Telephone Number.
(c) A statement identifying all rules or statutes that may be involved in the petition, if known.
(d) A clear and concise statement of the precise factual situation involved.
(e) The exact question to which an answer is desired.
(f) The reason for submitting the petition.
(g) Full disclosure of the petitioner's interest.
(h) A statement as to whether the petitioner's case or question presented is presently under consideration by the Department or by any judicial or quasi-judicial body in any pending proceedings, and if so where.
(i) A certification and signature of Petitioner before a notary public or other person authorized by law to administer oaths that the information contained in the petition is true and correct to the best of petitioner's information and belief, and that the petition has not been filed for any improper purposes, or for delay or harassment.
(3) Failure or refusal to completely disclose or provide the minimum information required by these rules shall be grounds for dismissal of the petition.
(4) Declaratory rulings shall not issue with respect to generalized grievances or matters that are currently pending before the Department or any judicial or quasi-judicial body in any administrative review, formal hearing, proceeding, contested case or litigation, nor be utilized as a means of collateral attack on or appellate review of any final decision of the Department, or any judicial or quasi-judicial body.
(5) All rulings will be made in accordance with the Alabama Administrative Procedure Act, Code of Ala. 1975, § 41-22-11.
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(1) Any person may petition the Department for the adoption of a new rule or for the repeal or change of any existing rule.
(2) Action by the Department on any such petition shall be as provided in the Code of Ala. 1975, § 41-22-8.
(3) In order to be considered, a petition for a rule change shall be in writing and contain the following minimum information:
(a) A title reflecting that the petition seeks the adoption of a new rule, or the modification or repeal of an existing rule or rules.
(b) The Petitioner's Name, Address, and Telephone Number.
(c) A statement identifying all rules or statutes that may be involved should the relief sought in the petition be granted in whole or in part.
(d) A clear and concise statement or narrative as to why the new rule, or modification or repeal of an existing rule is needed, specifying:
(i) the persons or class of persons it would affect and how it would affect them;
(ii) the benefits and disadvantages of the proposed rule, modification or repeal;
(iii) the estimated cost or cost savings to the Department;
(iv) any other reasons why the rule, modification, or repeal should be accepted by the Department;
(v) the legal authority for the proposed rule, modification or change;
(vi) the names and complete addresses of any persons, firms, organizations, and the identity of any class of persons known to the petitioner who would be or could be adversely affected by the proposed rule, modification or repeal.
(e) The reason for submitting the petition, if not apparent from the face of the petition.
(f) Full disclosure of the petitioner's interest.
(g) A statement as to whether the issues presented by the petition are presently under consideration by the Department or by any judicial or quasi-judicial body in any pending proceedings, and if so where.
(h) A certification and signature of Petitioner before a notary public or other person authorized by law to administer oaths that the information contained in the petition is true and correct to the best of petitioner's information and belief, and that the petition has not been filed for any improper purposes, or for delay or harassment.
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(1) The Department shall monitor the administration of area plans. The Department shall evaluate and monitor the performance of all Department grantees, subgrantees, service providers and contractors to ensure that all projects receiving federal and/or state funds operate effectively and in compliance with the conditions of their grants, subgrants or contracts and within federal and state rules and regulations.
(2) Criteria to be used during formal evaluations or monitoring will be provided to area agencies and Department grantees, subgrantees, service providers or contractors with a minimum 10-day notice. It is the responsibility of the area agency to inform their respective grantees, subgrantees, service providers or contractors of such evaluation.
(3) Termination or suspension of an area plan, withholding funds, or other punitive actions may be taken by the Department if an area agency, grantee, service provider, subgrantee or contractor fails to take action and correct problems specified by the Department as a result of monitoring or evaluation findings.
(4) The Department retains the right to conduct unannounced monitoring or evaluations to service sites or programs.
(5) At least once every two years, the Department will conduct an on-site performance evaluation or monitoring with each area agency or Department grantee, subgrantee, service provider or contractor. During interim years, the Department may conduct a self-assessment review with each area agency or Department grantee, subgrantee, service provider or contractor. Such evaluation, monitoring or self-assessment will be carried out prior to the end of the fiscal year.
(6) In the event that the Department discovers possible fraud, mismanagement, or program abuse during the course of a performance evaluation, assessment or monitoring, the Commissioner of the Department has the option to immediately suspend the program.
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(1) An Area Agency on Aging will be designated in each planning and service area as defined by Section 305 of the Older Americans Act.
(2) Actual designation occurs upon acceptance of the Area Agency's Area Plan and formal execution of the associated contract.
(3) The designated area agency is responsible for administration of Older Americans Act programs in its planning and service area with guidance from the U.S. Administration on Aging and the Department.
(4) The Department shall withdraw an area agency's designation in accordance with Section 305(b)(5)(c) of the Older Americans Act as amended, whenever, after reasonable notice and opportunity for a hearing, it is determined that:
(a) An area agency does not meet the requirements of 45 CFR 1321 and Section 305 and Section 306 of the Older Americans Act as amended; or
(b) An area plan or area plan amendments is not approved by the Department; or
(c) There is substantial failure in provisions or administration of an approved area plan to comply with provisions of the Older Americans Act of 1965, as amended, the applicable federal regulations, state statute, or administrative rule.
(5) If the affected area agency does not concur with the decision of the Commissioner regarding the designation or de-designation of an area agency, the appeal may be considered by and brought before the Administration on Aging for a ruling.
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(1) Area Agencies on Aging shall develop a comprehensive and coordinated service delivery system for older individuals and to serve as the advocate and focal point for older persons in the Planning and Service Area. Area agencies shall give special emphasis to Older American Act target groups when addressing service needs.
(2) Area agencies shall prepare and submit area plans for approval by the Department.
(3) The area plan must accurately describe required activities, essential information and include attachments and exhibits as required by the Department's format. The format for the Area Plan will be provided to area agencies by the Department according to Departmental policies.
(4) Prior to submission of the area plan to the Department, the area agency shall provide, at a minimum, one public hearing to provide interested parties the opportunity for review and comment on the area plan. Such hearing or hearings shall be held after reasonable notice and opportunity for comment.
(5) Also required as integral to the Area Plan, is an annual update to the operating element which details annual fiscal information. The format and submission dates of the Annual Update may be revised by the Department for flexibility in annual planning.
(6) Changes to the Area Plan are to be made based on the following:
(a) The plan shall be amended at any time under the circumstances prescribed in Federal regulations.
(b) Amendments to the area plan will be effected by new or revised information submitted by the area agency and having said amendment approved by Department.
(c) Amendments to an approved Area Plan must be approved in writing by the Department, prior to implementation.
(d) Minor revisions and non-substantive changes to the plan as determined by the Department may be made at any time by the area agency in order to keep the plan current. Examples of a minor revision are changes in telephone numbers and addresses, personnel, and administrative details not affecting the quantity or quality of services to persons assisted by the programs administered. The area agency shall notify the Department of minor revisions at least quarterly.
(e) Whenever a change is contemplated by the area agency in any cost category or individual salary as budgeted in the Area Plan for area agency administration:
(i) Prior written approval from the Department is required if the contemplated change would result in a change in the original approved amount greater than ten percent.
(ii) Notification of such change shall be included in the next monthly financial report to the Department, if the change would not result in a change in the original amount greater than ten percent.
(iii) Revised Area Plan pages shall be forwarded to the Department in accordance with time frames established by the Department.
(7) Subject to the availability of Federal and State funds and budget authority, the Department will subgrant with the area agency based on the submitted Area Plan for the Federal and State amounts indicated in the approved State Plan on Aging. Instructions for submitting payment requests and expenditure reports will follow Department policy.
(8) In the event an area agency, after written notice of deficiency, fails to comply in a timely manner with the terms of the area plan, contract or grant/subgrant agreement with the Department, the Department shall withhold distribution of a part of the total of contract or grant/subgrant funds designated for the area agency in proportion to the amount of services not furnished by the area agency as a result of the area agency delay. The Department shall promptly release any funds withheld, after corrective action has been taken or upon acceptance of a corrective action plan submitted by the area agency. If the area agency desires to appeal the decision to withhold funds, it may seek review in accordance with the Administrative Procedures Act and these Department Regulations.
(9) Withdrawal of an area agency designation will be done in conformity with Federal Regulations governing the Older Americans Act program and in accordance with the Administrative Procedures Act.
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(1) Within the planning and service area an area agency shall:
(a) Serve as an effective and visible advocate and focal point for older persons of the planning and service area, and
(b) Develop and administer the area plan for a comprehensive and coordinated system of services for older persons.
(2) Each area agency shall agree to the following responsibilities:
(a) Establish and maintain an Advisory Council. Membership of the Advisory Council shall be composed of persons residing within the planning and service area.
(b) Establish and maintain an adequate staff to administer the Area Plan.
(c) Plan social, health, nutrition and in-home services to meet the current and projected needs of older persons of the planning and service area, within the limits of available funds.
(d) Contract with service providers to assist socially or economically needy older persons, using priorities for services with special emphasis on target populations outlined in the Older Americans Act of 1965, as established locally by needs assessment information.
(e) Area Agencies on Aging shall have procedures for handling complaints from persons who complain that service has been denied, terminated or reduced improperly under any programs funded by the Older Americans Act. The procedures shall include at a minimum an opportunity to submit facts and information orally or in writing to support the complaint and a written decision from the area agency containing the reasons for its decision. Area Agencies on Aging shall require service providers funded under the area plan to have procedures for handling such complaints. The area agency shall have the final decision authority regarding client complaints.
(f) Provide programmatic technical assistance to service providers and monitor and assess services provided under the area plan. Monitoring by the area agency shall determine the provider's compliance with state and federal law and rules.
(g) Provide financial management services, technical assistance and financial monitoring of the operations of the service providers and maintain accountability for all funds awarded by contract, subgrant or memorandum of understanding by the Department.
(h) Provide training and staff development necessary for the implementation of the area plan.
(i) Accurately prepare and, in a timely manner, submit programmatic and fiscal reports required by Departmental policies.
(j) Coordinate with other programs for older persons to assure a comprehensive service delivery system.
(k) Have in place a conflict of interest policy for advisory council members, staff and service providers.
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(1) Any public or private non-profit agency or organization is eligible to receive a subgrant or contract for services funded under the Older Americans Act. A regional or local agency of the State, however, is not eligible to perform as a service provider. An area agency shall not provide direct services unless the Department grants a waiver under Section 307(a)(8)(A) of the Older Americans Act and XX-X-2-.05. Any proposed contract between an area agency and a profit making organization to provide services under an Area Plan must receive approval from the Department prior to contract execution.
(2) Any eligible agency or organization desiring to apply for a contract under the Area Plan may request an application from the area agency after a request for proposal(s) has been issued. The area agency shall respond within ten working days and enclose an application. The application will contain complete instructions, forms and specific documentation requirements to be completed by an applicant. The area agency shall utilize competitive bidding procedures in procurement contracts in accordance with State and Federal regulations.
(a) Applicants may apply for funding based on procedures established at the area agency.
(b) An applicant seeking Older Americans Act funding for the purpose of acquisition, alteration, or renovation of existing facilities, including mobile units, and construction of facilities to serve as multipurpose senior centers, shall make requests to the area agency. The area agency will render technical assistance concerning procedures and required documentation.
(3) Applicants may seek technical assistance regarding the application process from the area agency at any time.
(a) To be considered responsive, a formal application for funding must be, at a minimum:
(i) Signed by the senior officer of the applicant agency's governing body or designee.
(ii) Provide an acceptable commitment for required non-federal financial participation (matching requirement).
(iii) Contain assurances of compliance with applicable Federal Regulations.
(4) A non-responsive application shall be rejected by the area agency; or, at the discretion of the area agency, an applicant may be permitted to withdraw the application and resubmit it after correction of deficiencies.
(5) In the event an applicant is dissatisfied with the action taken by the area agency, the applicant may request a hearing of the area agency.
(6) If the application is accepted for funding, the service provider will be further instructed by the area agency regarding establishment of project operation and start of service.
(7) Contracts or grants/subgrants between the Department, and the area agency, lead agency or core service providers shall follow Department contracting and financial management procedures.
(8) Service providers funded under the Area Plan shall adopt procedures for handling complaints from persons who assert that service has been denied, terminated or reduced improperly under any programs funded by the Older Americans Act. The complaint procedure must permit at least an opportunity to present orally or in writing the reasons why the service should not be changed and that the provider will furnish to the complainant a written explanation of the nature and reasons for the provider's action. Complaints which remain unresolved by a service provider shall be referred to the area agency by written report from the service provider no later than 30 days following the complainant's notice, with detailed information regarding efforts to resolve the complaint.
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(l) Area agencies may apply for a waiver to provide direct services of Older American Act programs. Any request for a waiver shall follow Older Americans Act of 1965 requirements. Applications for waivers shall be made in writing to the Department Commissioner no less than 60 days prior to the first day of the fiscal year for which the waiver is requested. If the Department Commissioner does not approve the request for a waiver within 30 days from the date of the request, such a request shall be deemed denied. If the Commissioner approves such a request, the grant of a waiver shall be effective for one fiscal year only.
(2) Requests for renewal of a waiver to provide direct services of Older Americans Act programs shall be made no less than 60 days prior to the termination of the waiver. If the Commissioner does not approve the request for renewal of a waiver within 30 days from the date of the request, such a request shall be deemed denied. If the Department Commissioner approves such a request, the grant of a renewal of a waiver shall be effective for one fiscal year only. Any further requests for renewals shall be made in accordance with XX-X-2-.05(1).
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(1) The following rules and minimum procedural safeguards shall govern the provision of services for the following categories of programs under the Older Americans Act:
(a) Supportive services (with the exception of the Legal Assistance Program)
(b) Congregate meals services
(3) Home delivered meals services
(d) In-home services
(e) Ombudsman services
(f) Special needs services
(g) Elder abuse services
(h) Preventive health services
(i) Outreach services
(2) The Department requires the area agencies to follow these minimum procedures with regard to notice:
(a) Notice of Proposed Action.
The area agency shall provide written notice to clients of the services to be terminated or reduced.
The area agency shall provide written notice to an applicant or client of a denial of eligibility or services.
The notice shall contain:
(i) the action(s);
(ii) the reason(s) for the action(s); and
(iii) an explanation of the right to request a review in accordance with area agency procedures.
(b) Delivery of Notice.
(i) by first class mail, postage prepaid, effective upon deposit of such notice in the mail,
(ii) by personal service, or
(iii) by certified mail, return receipt requested.
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(1) The following rules and minimum procedural safeguards shall govern the provision of services for Department programs.
(2) The Department requires service providers to follow these minimum procedures with regard to notice:
(a) Notice of Proposed Action.
The service provider shall provide written notice to clients of the services to be terminated or reduced.
The service provider shall provide written notice to an applicant or client of a denial of eligibility or services.
The notice shall contain:
(i) the action(s);
(ii) the reason(s) for the action(s); and
(iii) an explanation of the right to request administrative review and formal hearing in the event the applicant or client disagrees with the action(s).
(b) Delivery of Notice.
(i) by first class mail, postage prepaid, effective upon deposit of such notice in the mail,
(ii) by personal service, or
(iii) by certified mail, return receipt requested.
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(1) A provider of services for an Area Agency, client or applicant may apply for an informal administrative review by the Department regarding an Area Agency decision only after the Area Agency complaint process has been exhausted.
(2) Requests for informal hearings are limited to an individual who has been denied care under an Area Agency program due to eligibility standards, or a service provider that has been denied a claim for services provided an Area Agency client or non-renewal or termination of a contract. Other requests for informal hearings by the Department regarding an action of an Area Agency shall be granted at the discretion of the Department Commissioner.
(3) A written request for an informal administrative review shall be filed with the Department Commissioner within ten (10) calendar days of the date of receipt of the final decision of the Area Agency.
(4) Within ten (10) calendar days of receipt of the request the Department Commissioner shall appoint two staff members who have not been directly involved with the petitioning party to serve as a review team, and shall notify the petitioning party by first class mail of the time and place for the review.
(5) The review team shall consider all the records of the Department concerning the petitioning party's complaint, any other pertinent documents or information, and any writings, documents or oral communication presented to it by the petitioning party.
(6) The review team shall conduct the informal review as expeditiously as possible, but in no event more than thirty (30) days after receipt of the request by the Department, unless extended by agreement or for good cause shown.
(7) The review team shall issue a written decision within fifteen (15) calendar days of the date of completion of the review. The decision of the informal administrative review shall be communicated to the petitioning party in the same manner as a notice of proposed action as outlined in Administrative Code Rule 70-X-3-.01.
(8) The informal administrative review decision shall be made a part of the petitioning party's record.
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(1) Whenever possible, the Department shall attempt to resolve a complaint informally if it is likely to result in a timely resolution of the matter.
(2) A written request for an informal administrative review shall be filed with the Department Commissioner within ten (10) calendar days of the date of receipt of the issuance of the notice of action from the Department as specified in Administrative Code Rule 70-X-3-.02. Requests for informal reviews are limited to contested cases by individuals who have been denied care for direct services provided under a Department program due to eligibility standards, or a direct service provider of the Department that has been denied a claim for services provided a Department client or non-renewal or termination of a contract. Other requests for informal hearings on an action of the Department shall be granted at the discretion of the Department Commissioner.
(3) Within ten (10) calendar days of receipt of the request the Department Commissioner shall appoint two staff members who have not been directly involved with the petitioning party to serve as a review team, and shall notify the applicant or client by first class mail of the time and place for the review.
(4) The review team shall consider all the records of the Department concerning the petitioning party's complaint, any other pertinent documents or information, and any writings, documents or oral communication presented to it by the party.
(5) The review team shall conduct the informal review as expeditiously as possible, but in no event more than thirty (30) days after receipt of the request by the Department, unless extended by agreement or for good cause shown.
(6) The review team shall issue a written decision within fifteen (15) calendar days of the date of completion of the review. The decision of the informal administrative review shall be communicated to the petitioning party in the same manner as a notice of proposed action as outlined in Administrative Code Rule XX-X-3-.02.
(7) The informal administrative review decision shall be made a part of the petitioning party's record.
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(1) If a complainant is dissatisfied with the decision of an informal, administrative review hearing, or if an applicant, client or direct service provider chooses to forego their right to request an informal administrative review, he or she may request a formal hearing by submitting a written request for a hearing addressed to the Commissioner of the Department. Requests for formal hearings shall be limited to actions of the Department which are claimed to be:
(a) in violation of constitutional or statutory provisions;
(b) in excess of the statutory authority of the Department;
(c) in violation of a Department rule;
(d) made upon unlawful procedure;
(e) affected by other error of law; or
(f) unreasonable, arbitrary or capricious or characterized by an abuse of discretion or unwarranted exercise of discretion.
(2) The request shall specify the reason(s) why the hearing is requested, shall state with reasonable particularity the relief sought, and shall not be authorized with respect to generalized grievances not directly related to the provision of services. At a minimum, the written request shall:
(a) Identify the action being challenged;
(b) Identify the parties to the action being challenged;
(c) Identify the role of each party to the action being challenged;
(d) Include a short and plain statement to the matters asserted; and
(e) Identify the outcome desired.
(3) The request for a formal hearing must be received by the Commissioner of the Department within fourteen (14) calendar days of the date of receipt of the notice of proposed action or within fourteen (14) calendar days of receipt of an informal administrative review decision when one has been requested. Any individual who has requested an informal administrative review may withdraw such request at any time prior to the issuance of the informal administrative review decision. Failure of an individual or party to request a hearing within fourteen days shall constitute a waiver of the right to demand a formal hearing and shall cause the Department action to become final without further review.
(4) If a hearing is requested within the above time period, the Commissioner shall, as may be otherwise provided by law, appoint an impartial hearing officer to conduct the hearing.
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Notification of a formal hearing shall include, at a minimum:
(1) The time, date and place of the hearing;
(2) The statement of the legal authority and jurisdiction under which the hearing is to be held;
(3) A short and plain statement as to the matters asserted.
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(1) In the conduct of a hearing, a hearing officer shall have the following authority:
(a) establish a date, time and place for the hearing;
(b) maintain order;
(c) make a record of the proceedings;
(d) establish reasonable time limits for the conduct of the proceedings;
(e) rule on the admissibility of evidence;
(f) hold a prehearing conference, if necessary, to clarify the matters in dispute; establish the order of presentation; allow and establish time limits for the exchange of exhibits and names of witnesses;
(g) issue subpoenas, discovery orders related to relevant matters, and protective orders in accordance with the Alabama Rules of Civil Procedure, subject to the reasonable costs of issuance of the subpoenas as may be set from time to time by the Commissioner; and
(h) enter any order on any other matter which will effectuate the conduct of the hearing.
(2) A party may be represented by counsel at his or her own expense.
(3) Unless a party otherwise requests, the hearing shall be open to the public.
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(1) A party to any formal action or contested case who intends to assert bias or conflict on the part of any hearing officer appointed by the Commissioner must do so by filing an affidavit and suggestion of disqualification together with the underlying factual basis for the assertion. The affidavit and suggestion of disqualification must be received by the Commissioner of the Department at least three days before the scheduled hearing. In the absence of actual or constructive bias or prejudice, the failure to timely file an affidavit and suggestion of disqualification shall be deemed a waiver of such grounds as error in any appeal.
(2) The hearing officer shall consider the assertion of disqualification on the record as a preliminary matter at the hearing before any other question is decided.
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Informal dispositions may be made of any matter set for hearing by stipulation, agreed settlement, consent order or default or by another method agreed upon by the parties.
An informal disposition shall be reduced to writing, signed by the parties, and made a part of the party's file.
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(1) The record of a hearing shall include:
(a) the notice of proposed action;
(b) the request for a hearing;
(c) the administrative review decision, if any;
(d) all pleadings, motions and intermediate rulings;
(e) all evidence received or considered and all other submissions including staff memoranda or data submitted; provided, in the event that evidence in any proceeding may contain proprietary and confidential information, steps shall be taken to prevent public disclosure of that information;
(f) a statement of all matters officially noticed;
(g) a transcript of the proceedings;
(h) all questions and offers of proof, objects and rulings thereon;
(i) all proposed findings and exceptions;
(j) any decision, opinion or report by the hearing officer at the hearing;
(k) the written decision and recommendation of the hearing officer; and
(1) the decision and final order of the Commissioner, if applicable.
(2) Oral proceedings shall be recorded either by mechanized means or by qualified shorthand reporter. Oral proceedings shall be transcribed at the request of any party with the expense of the transcript charged to the requesting party. The record of oral proceedings shall be maintained by the Department for five (5) years from the date of entry of the final order.
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The rules of evidence as provided in the Code of Ala. 1975, § 41-22-13 shall apply to all hearings conducted under these rules.
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(1) Upon completion of a hearing, the hearing officer shall prepare a written decision and recommendation. The decision shall contain a statement of facts found by the hearing officer, a recitation of the application of the facts found to the applicable statutes, rules, regulations, policies, and procedures, and a proposed recommendation as to the merits of the matters presented for review.
(2) The hearing officer's decision and recommendation along with the record shall be submitted to the Commissioner of the Department within thirty (30) calendar days after the hearing is concluded. The hearing officer's decision and recommendation shall be communicated by the Department in person or by certified mail.
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(1) Within thirty (30) days of receipt by the Commissioner of the decision and recommendation of the hearing officer, the Commissioner shall notify the parties of the intent to review the decision in whole or in part.
(2) The review conducted by the Commissioner shall be limited to the issues addressed in the formal hearing before the hearing officer, and shall be based upon a review of the record, the decision and recommendation of the hearing officer, and any objections and documentary evidence submitted by the parties.
(4) In the discretion of the Commissioner, the Commissioner may personally receive additional argument or testimony or may remand the matter to the hearing officer for the submission of additional oral testimony and evidence. If the Commissioner decides to personally receive argument or additional testimony, the Commissioner shall set a date, not more than fourteen (14) days after the date of the Commissioner's notice of intent to review the decision of the hearing officer, by which time additional argument, testimony and evidence shall be received. In the event the Commissioner decides to remand the proceedings to the hearing officer, the Commissioner shall set a date, not more than fourteen (14) days after the date of the Commissioner's notice of intent to review the decision of the hearing officer, by which time additional testimony and evidence, and an amended decision and recommendation of the hearing officer is to be received.
(5) The Commissioner may affirm in whole or in part, reject or modify this recommendation of the hearing officer; provided, however, the Commissioner may reject or modify a recommendation of the hearing officer that supports the position of the party only if it is clearly established that the hearing officer's findings, inferences, conclusions or decisions are:
(a) in violation of constitutional or statutory provisions;
(b) in excess of the statutory authority;
(c) in violation of the state plan, or a department or program rule;
(d) upon unlawful procedure;
(e) affected by other error of law;
(f) clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or
(g) unreasonable, arbitrary or capricious or characterized by an abuse of discretion or a clearly unwarranted exercise of discretion.
(6) Within thirty (30) calendar days after the hearing officer's initial decision and recommendation is received, or within twenty (20) calendar days after the receipt of an amended decision and recommendation of the hearing officer in the event of a remand, whichever is longer, the Commissioner shall enter a final written decision and order. The final decision and order shall include findings and grounds therefore and shall be communicated to the parties in the same manner as a notice of proposed action. If the Commissioner does not enter a separate written final decision and order within the time frames stated above, unless otherwise extended by agreement of the parties in writing, the decision and recommendation of the hearing officer shall be deemed the final order of the Commissioner by operation of law.
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(1) Any party may, within fifteen (15) calendar days after entry of the final order, file an application for rehearing before the Commissioner as provided by Code of Ala. 1975, § 41-22-17.
(2) If the Commissioner does not grant the application within thirty (30) days from filing, and unless otherwise extended by agreement of the parties in writing, the application for rehearing shall be deemed denied by operation of law.
(3) An application for rehearing is not required as a prerequisite to proceeding under Administrative Code Rule XX-X-5-.13.
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(1) If a party fails without good cause to appear at either an administrative review or a formal hearing after proper service of notice the review team or hearing officer may, if no adjournment is granted, proceed with the review or hearing and make a decision in the absence of the party.
(2) A request for administrative review or hearing may be denied or dismissed for the following reasons:
(a) the individual withdraws the request in writing;
(b) the individual makes a request that is contrary to the regulations of the program;
(c) the individual abandons his or her request for administrative review or a hearing when, without good cause, the applicant or client fails to appear.
(3) Good cause is defined as:
(a) death in the immediate family; or
(b) personal injury or illness which reasonably prohibits an applicant or client from attending the review or hearing.
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If the last day of a time period falls on a Saturday, Sunday, or holiday authorized by Code of Ala. 1975, § 1-3-8, then the last day of a time period shall be the next day the Department is open for business.
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A party who has exhausted all administrative remedies available and who is aggrieved by a final order may seek judicial review pursuant to the provisions of the Code of Ala. 1975, §§ 41-22-20 and 41-22-21.
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