Section R9-21-408. Further Appeal to Administrative Hearing

A.       Any grievant or the client who is the subject of the grievance who is dissatisfied with the decision of the deputy director of the Division may request a fair hearing before an administra- tive hearing officer.

1.        Within 30 days of the date of the decision, the appealing party shall file with director of the Department a notice requesting a fair hearing.

2.        Upon receipt of the notice, the director shall send a copy to the parties, to the deputy director of the Division, and to the Office of Human Rights and the human rights com- mittee for clients who are in need of special assistance.

3.        Within five days of the receipt of the notice of further appeal, the director of the Department shall appoint an impartial hearing officer. The hearing officer may not be an employee of the Department, a regional authority, or of a service provider under contract or subcontract with the Department. However, the Department may contract with a qualified individual to serve as the hearing officer under this rule. The director shall send copies of the appointment to the hearing officer together with the case record and to the parties including the Division.

4.        Within five days of the appointment, the hearing officer shall inform the parties, the Office of Human Rights, and the human rights committee if the client is in need of spe- cial assistance, of the time and place of the hearing. The hearing shall be scheduled not less than 20 nor more than 30 days from the receipt of the request for fair hearing at a location convenient to all parties.

B.       The hearing shall be conducted consistent with A.R.S. §§ 36- 111 and 36-112 and 41-1061 et seq. (the Administrative Proce- dure Act), and those portions of R9-1-101 through R9-1-126 which are consistent with this Article.

1.        The client shall have the right to be represented at the hearing by an individual chosen by the client at the cli- ent’s own  expense, in accordance with Rule 31(a)(3), Rules of the Supreme Court.

a.        If the client has not designated a representative to assist the client at the hearing and is in need of spe- cial assistance, the human rights committee, through one of its members or the human rights advocate unless refused by the client, shall make all reason- able efforts to represent the client.

b.        If the client is unrepresented and the deputy director of the Division determines the appointment of a rep- resentative to be in the client’s best interest, the dep- uty director shall designate a representative to assist the client in the appeal.

2.        The client or other appealing party shall have the right to present any evidence relevant to the issues under appeal and shall have the right to call and examine witnesses.

3.        The client or other party appealing on behalf of the client shall have the right to examine all records held by the Department pertaining to the client.

4.        Any portion of the hearing may be closed to the public if the client requests or if the hearing officer determines that it is necessary to prevent an unwarranted invasion of the client’s privacy or that public disclosure would pose a substantial risk of harm to the client.

5.        The standard of proof on all issues shall be a preponder- ance of the evidence.

6.        The burden of proof on all issues shall be on the appeal- ing party.

7.        Within 10 days of the conclusion of the hearing, the hear- ing officer shall prepare, date, sign, and send a written recommended decision to director  of the Department, together with the case record. The recommended decision shall include findings of fact, which shall be binding on the Department for administrative purposes, and conclu- sions and recommendations for action as appropriate.

C.       Within 20 days of the conclusion of the hearing, the director of the Department shall render a final written decision, based upon the recommendation of the hearing officer.

1.        The decision shall include a concise statement of the facts found, a summary of the evidence relied upon, the deci- sion and the reasons for so deciding, and a notice of the client’s right to petition the director of the Department for

a rehearing under R9-1-113 and to seek judicial review under A.R.S. § 36-113.

2.        The decision shall be mailed promptly to the client, the other parties, and their designated representatives.

3.        The Division shall arrange to have the decision explained to the client, together with the right to seek rehearing and judicial review.

4.        Except to the extent that the decision is subject to an order for rehearing, the decision of the director is the final decision of the Department on all issues.

D.       Within 30 days of the date of service of the decision of the director, the client or party appealing on behalf of the client may petition the director for a rehearing or review pursuant to R9-1-120.

Historical Note

Adopted under an exemption from A.R.S. Title 41, Chap- ter 6 pursuant to Laws 1992, Ch. 301, § 61, effective October 7, 1992; received in the Office of the Secretary of State October 14, 1992 (Supp. 92-4). Section repealed; new Section R9-21-408 renumbered from R9-21-407 and amended by exempt rulemaking at 9 A.A.R. 3296, effec- tive June 30, 2003 (Supp. 03-2).