25 CAR § 34-108. Hearings

(a) Special types of hearings. (1)(A) Special nutrition program. (B) See Family Day Care Home (FDCH)-3. (2) Medical necessity/medical disability decisions: (A) The hearing official will notify the appellant in writing that if the appellant has evidence regarding the initial application and asserted disability, the appellant must provide the information to the hearing official or complete a Consent for Release of Information Form as soon as possible and before the hearing; (B) The hearing will not be delayed for failure to submit additional evidence; (C)(i) Evidence presented to the hearing official will be limited to evidence of eligibility as of the date of denial by the Department of Human Services. (ii) The hearing official will refuse evidence about subsequent medical necessity/disability and advise the applicant to submit a new application to the department; (D) A physician employed by the department to review denials will be available by phone for the hearing if requested or subpoenaed by any party; and (E)(i) The hearing official will hear medical and nonmedical evidence regarding eligibility. (ii) The hearing official will make the final decision regarding eligibility. (b) Hearing officials — Each hearing official must act impartially. (1) Hearing officials must not have communication with any party to an administrative adjudication if any other party is excluded from the communication, except that the following communications are acceptable: (A) Communication necessary to schedule hearings and the submission of exhibits and arguments; or (B) Communication necessary to identify, without comment or argument, any exhibits or documents being delivered to the Office of Appeals and Hearings. (2) Conflict of interest. (A) Any hearing official having a conflict of interest must notify the office managing administrative law judge immediately upon discovering a conflict of interest, and must not take any further action regarding the claim or controversy. (B) A hearing official must recuse if the hearing officer has personal knowledge of the facts of the case or has a conflict of interest. (C) A hearing official should recuse if any party has reasonable cause to suspect that the hearing officer may not be impartial. (c) Attendance. (1)(A) Administrative adjudications are public proceedings and are open to the public subject to state and federal confidentiality laws, rules, and regulations. (B) An appellant may waive his or her right to confidentiality but may not waive another's right to confidentiality. (C) For example, an appellant may not: (i) Waive an alleged child victim's right to confidentiality in a child maltreatment case; (ii) Waive a nursing home resident's right to confidentiality in an adult abuse or neglect case; and (iii) Waive a child's right to confidentiality in a special nutrition case. (2)(A) The hearing official may determine that a party is physically or mentally unable to attend or participate, or that the party's presence will so disrupt the proceedings that the adjudication cannot continue in an orderly fashion unless the party is excluded. (B) Party representatives may be present at all stages of the proceedings unless the hearing official determines that a representative's presence will so disrupt the proceedings that the adjudication cannot continue in an orderly fashion unless the representative is excluded. (3)(A) Interpreters may be present when necessary to facilitate communication before and during a hearing. (B) Interpreters shall be placed under oath before interpreting testimony. (C) The following oath is suggested: "Do you solemnly affirm that you will truthfully and accurately interpret all questions and answers?". (4)(A) Witnesses may be present unless: (i) Any party has asked that the witnesses be excluded except while testifying; or (ii) The evidence is confidential by state or federal law, rule, or regulation, and disclosing the evidence to a nontestifying witness would violate that confidentiality. (B) If witnesses are excluded from the hearing, the witnesses shall be instructed that until a witness is released, that witness must not discuss the evidence with another witness and must not discuss any other witness's testimony with anyone. (5) Observers will be excluded if the evidence to be presented is confidential under state or federal law, rule, or regulation, and disclosing the evidence to the observer would violate that state or federal law, rule, or regulation. (6) News media. Persons representing the news media will be excluded if the evidence to be presented is confidential under state or federal law, rule, or regulation, and disclosing the evidence to the observer would violate that state or federal law, rule, or regulation. (d) Opening and closing statements. Each party may be given an opportunity to make an opening and closing statement limited to ten (10) minutes unless the issues are so complex that the hearing official determines that more time is required to adequately explain the parties' contentions. (e) Questions allowed. (1) Questioners may ask only one (1) question at a time. (2) Questions may not take the form of statements or contentions, and must not be asked in such a way as to bully or intimidate a witness. (f) Newly acquired evidence. (1)(A) Admissible evidence that was not submitted to the person or persons who made the decision under appeal may be admitted in appeals under Arkansas Code § 5-28-211 [repealed] or Arkansas Code § 12-12-512 [repealed]. (B) Newly acquired evidence may be admitted in other appeals only if the evidence: (i) Concerns events or circumstances predating the application, request, or decision under appeal; and (ii) Could not have been obtained by the party offering the evidence despite that party's due diligence in acquiring evidence. (2)(A) If the hearing official determines that newly acquired evidence is admissible, the hearing official shall return the case to the decision maker so that the newly acquired evidence may be considered, or shall determine that there is good cause not to return the case. (B) Each good cause finding and the reasons therefore shall be stated in the findings of fact and conclusions of law. (g) Allowing additional evidence after the hearing. If a request to receive additional identified and specifically described evidence is made at the hearing, the office may for good cause hold the hearing record open for a specified period of time to receive additional admissible and relevant evidence that will assist the hearing official in deciding the case.