Basis of Fair Hearing Decision

(1) The hearing officer's decision shall be based upon testimony, documentary evidence, other tangible evidence and legal rules presented at the hearing. Any evidence, testimony, materials, legal rules or arguments presented after the close of the hearing will be excluded unless the hearing is reopened, the parties stipulate procedures for response, or waive the right to respond. (2) The decision shall be based upon a preponderance of evidence. 1.710: continued (3) The decision must be made in accordance with the law. (a) The law includes the State and Federal Constitutions, statutes, regulations, and decisions of State and Federal Courts. (b) The hearing officer may not determine the legality of ORI regulations. If the legality of an ORI regulation is at issue, the hearing officer shall base the decision on the regulation, explaining in the decision that he or she is without authority to decide the legality of the regulation. (c) The hearing officer cannot as the sole basis for the decision rely on ORI memoranda and materials containing nonregulatory rules, standards, or interpretations. (d) However, the hearing officer may admit as evidence pertinent ORI procedures or policies and may allow the appellant time to respond in writing to those items admitted as evidence.