COMMENT DUE DATE:
February 15, 2018
DATE:
January 16, 2018
Travis Smith Legal Services 405-521-3638
Dena Thayer, Programs Administrator 405-521-4326
RE:
APA WF 18-2B
The proposed policy is Permanent . This proposal is subject to Administrative Procedures Act
It is important that you provide your comments regarding the draft copy of policy by the comment due date.Comments are directed to STO.LegalServices.Policy@okdhs.org.The proposed policy is permanent.
A public hearing is scheduled for 10:00 a.m. on February 21, 2018, at DHS, Sequoyah Memorial Office Building, 2400 N. Lincoln Boulevard, Oklahoma City, Oklahoma 73105, Room C-48.Anyone who wants to speak must sign in at the door by 10:05 a.m.
SUBJECT:CHAPTER 2. ADMINISTRATIVE COMPONENTS
Subchapter 28. Office of Administrative Hearings:Child Support
340:2-28-4.1 through 340:2-28-4.3 [AMENDED]
340:2-28-24 [AMENDED]
340:2-28-30 [AMENDED]
(Reference WF 18-05)
SUMMARY:The proposed amendmentsto the rules are necessary to formalize the transition from the Office of Administrative Hearings (OAH): Child Support'sformer primary hearing model, in which the Administrative Law Judge (ALJ) was physically present to conduct hearings, to the current primary hearing model, in which the ALJ conducts hearings though video/tele-conferencing means.The proposed amendments reflect the impact of the current hearing model on the assignment of ALJs, regardless of the physical location of all participants, and the improved ability to provide an ALJ, on request, to preside over a contested hearing.Further, the changes memorialize, in part, OAH's ability to schedule/continue hearings to protect the continuity of an ALJ in an individual action and to minimize inconvenience to DHS personnel and the general public.The proposed amendments redefine when OAH may be considered "in session" and clarifies how filings may be made. In addition, the proposed amendments also update the duties of the OAH court clerks.The proposed amendments also authorize alternative means to record hearings, while clarifying that OAH is not required to make or maintain video recordings of hearings.
PERMANENT APPROVAL:Permanent rulemaking is requested.
LEGAL AUTHORITY:Director of Human Services; Section 162 of Title 56 of the Oklahoma Statues; and 340:2-28-1.
Rule Impact Statement
To:Programs administrator
Legal Services - Policy
From: Ron Baze, General Counsel
Date:December 18, 2017
Re:CHAPTER 2. ADMINISTRATIVE COMPONENTS
Subchapter 28. Office of Administrative Hearings:Child Support
340:2-28-4.1 through 340:2-28-4.3 [AMENDED]
340:2-28-24 [AMENDED]
340:2-28-30 [AMENDED]
(Reference WF 18-05)
Contact:Travis Smith 405-521-3638
A.Brief description of the purpose of the proposed rule:
Purpose.The proposed amendmentsto the rules are necessary to formalize the transition from the Office of Administrative Hearings (OAH): Child Support'sformer primary hearing model, in which the Administrative Law Judge (ALJ) was physically present to conduct hearings, to the current primary hearing model, in which the ALJ conducts hearings though video/tele-conferencing means.The proposed amendments reflect the impact of the current hearing model on the assignment of ALJs, regardless of the physical location of all participants, and the improved ability to provide an ALJ, on request, to preside over a contested hearing.Further, the changes memorialize, in part, OAH's ability to schedule/continue hearings to protect the continuity of an ALJ in an individual action and to minimize inconvenience to DHS personnel and the general public.The proposed amendments redefine when OAH may be considered "in session" and clarifies how filings may be made. In addition, the proposed amendments also update the duties of the OAH court clerks.The proposed amendments also authorize alternative means to record hearings, while clarifying that OAH is not required to make or maintain video recordings of hearings.
Strategic Plan Impact.
The proposed amendments to the rules are necessary to formalize the transition from OAH's former primary hearing model, in which the ALJ was physically present to conduct the hearing to the current primary hearing model, in which the ALJ conducts hearings though video/tele-conferencing means.
Substantive changes.
Oklahoma Administrative Code (OAC) 340:2-28-4.1 is amended to optimize the assignment of ALJs to take full advantage of the flexibility provided by the current video/tele-conferencing primary hearing model, while still protecting the continuity of a presiding ALJ over an individual action.
340:2-28-4.2 is amended to redefine when OAH may be considered "in session" and to clarify how document filings may be made.
340:2-28-4.3 is amended to clarify the responsibilities of the OAH court clerks.
340:2-28-24 is amended to allow alternative means for recording hearings, while clarifying that OAH is not required to make or maintain video recordings of hearings.
340:2-28-30 is amended to memorialize, in part, OAH's ability to schedule/continue hearings to protect the continuity of an ALJ in an individual action, to change/make judicial assignments to dockets/actions as needed, and to enter, on the Court's own motion, continuances which minimize inconvenience to DHS personnel and the general public.
Reasons.
OAH, over the past year, has transitioned from a primary hearing model, in which the ALJ was physically present to conduct hearings, to the current primary hearing model, in which the ALJ conducts hearings though video/tele-conferencing means.In addition, OAH has also minimized, over the last 12 months, the number of physical documents received, processed, and maintained.OAH has stopped using audio tape recordings of hearings, in favor of more efficient, electronic recordings.The proposed amendments reflect the impact of these changes on OAH daily operations, from the assignment of ALJ's to the targeted use of continuances for certain purposes.The OAH operational changes also necessitate a new definition of when OAH may be considered "in session" and the clarification of how filings may be made. The proposed amendments also update the regular duties of OAH court clerks.In addition, the proposed amendments also proactively protect OAH from any demand that OAH make or maintain video recordings of hearings, even as the majority of hearings are conducted through video/tele-conferencing means.
Repercussions.No negative repercussions have been identified.
Legal authority. Director of Human Services; Section 162 of Title 56 of the Oklahoma Statues; and 340:2-28-1.
Permanent rulemaking approval is requested.
B.A description of the classes of persons who most likely will be affected by the proposed rule, including classes that will bear the costs of the proposed rule, and any information on cost impacts received by the Agency from any private or public entities:The classes of persons mostly affected are DHS Child Support Services, child support obligors, and custodial persons to whom child support is to be paid.There are no identifiable costs associated with the proposed rule.
C.A description of the classes of persons who will benefit from the proposed rule:The classes of person who will benefit are Oklahoma Department of Human Services (DHS) Child Support Services staff, child support obligors, and custodial persons to whom child support is to be paid.
D.A description of the probable economic impact of the proposed rule upon the affected classes of persons or political subdivisions, including a listing of all fee changes and, whenever possible, a separate justification for each fee change:There are no identifiable costs associated with the proposed amendmentand no fee changes.
E.The probable costs and benefits to the Agency and to any other agency of the implementation and enforcement of the proposed rule, the source of revenue to be used for implementation and enforcement of the proposed rule and any anticipated effect on state revenues, including a projected net loss or gain in such revenues if it can be projected by the Agency:There are no identifiable costs associated with the proposed rule amendments.The benefit to DHS and the classes of all affected persons is improved access to an ALJ, on request, to preside over contested hearings and enter orders.There is no identifiable impact upon state revenues.
F.A determination whether implementation of the proposed rule will have an impact on any political subdivisions or require their cooperation in implementing or enforcing the rule:There is no identifiable impact on any political subdivisions nor is cooperation required.
G.A determination whether implementation of the proposed rule will have an adverse economic effect on small business as provided by the Oklahoma Small Business Regulatory Flexibility Act:There is no identifiable adverse economic effect on small business per the Oklahoma Small Business Regulatory Flexibility Act.
H.An explanation of the measures the Agency has taken to minimize compliance costs and a determination whether there are less costly or nonregulatory methods or less intrusive methods for achieving the purpose of the proposed rule:There are no identifiable costs associated with the proposed rule, and, therefore, there are no less costly or nonregulatory methods or less intrusive methods for achieving the purpose of the proposed rule.
I.A determination of the effect of the proposed rule on the public health, safety, and environment and, if the proposed rule is designed to reduce significant risks to the public health, safety, and environment, an explanation of the nature of the risk and to what extent the proposed rule will reduce the risk: There is no identifiable effect or impact by the proposed rule on the public health, safety, and environment, if the rule is implemented.
J.A determination of any detrimental effect on the public health, safety, and environment if the proposed rule is not implemented:There is no identifiable effect or impact by the proposed rule on the public health, safety, and environment, if the rule is not implemented.
K.The date the rule impact statement was prepared and, if modified, the date modified:Prepared: June 21, 2017; modified December 18, 2017.
SUBCHAPTER 28. OFFICE OF ADMINISTRATIVE HEARINGS:CHILD SUPPORT
340:2-28-4.1. Districts
Revised 9-17-18
The chief administrative law judge (ALJ) assigns the ALJs to the various child support districts within the state.Unless the assigned ALJ recuses or is otherwise unavailable, the assigned ALJ determines all actions in cases docketed by the child support districts to which that ALJ is assigned.However, if the assigned ALJ is not available for a docket or for an action in a case on the docket, the chief ALJ may assign another ALJ to the docket or to an action in a case, within the discretion of the chief ALJ, provided appropriate consideration is given to maintaining the ALJ's continuity in individual actions that he or she heard or partially-heard on the record.If an action was heard or partially-heard on the record by an ALJ who is later not immediately available, the chief ALJ or another ALJ, as designated by the chief ALJ, may continue the matter without hearing to a date when the assigned ALJ is available.The chief ALJ may delegate to the court clerks, as appropriate, the ability to secure an available ALJ to conduct a hearing, when the assigned ALJ is unavailable and no part of the individual action in a case has been previously heard on the record.
340:2-28-4.2. Terms and location of Office of Administrative Hearings: Child Support
Revised 9-15-169-17-18
(a) The Office of Administrative Hearings: Child Support (OAH) is in session at whenever there is a regularly- or specially-scheduled docket with participating district child support offices on days docketeddesignated for administrative hearings; pleadings,.Pleadings, other documents, and orders may be filed with, or presented to, the administrative law judge (ALJ) at the participating district child support offices, if the ALJ is physically present, on administrative hearing docket days.On days when OAH is not in session at the district child support officeany business day, pleadings, other documents, and orders mustmay also be filed at OAH located in the Sequoyah Building, 2400 North Lincoln Boulevard, Oklahoma City, Oklahoma.Filing may be accomplished through hand-delivery, postal or parcel delivery, facsimile transmission, and electronic transmission, if the available means are secure and compatible with OAH's docketing and case management software.Electronic transmission, in this context, does not include electronic messaging for example, email or text messaging.The OAH mailing address is Oklahoma Department of Human Services, Attn:OAH, PO Box 25352, Oklahoma City, Oklahoma 73125-0352.
(b) Proceedings cannot commence unless and until an administrative case is opened through Oklahoma Department of Human Services Child Support Services.
(c) All proceedings are commenced by filing pleadings at OAH.The OAH file is maintained at OAH located in the Sequoyah Building unless otherwise designated by the OAH chief ALJ.
(d) All pleadings filed and exhibits introduced are kept inmaintained exclusively by OAH unless an ALJ directs otherwise and are not removed except upon order of an ALJ.In that event, a receipt specifying the record or document removed must be submitted to OAH by the party obtaining the record or document.The receipt must be legible and state the date and the name, business address, and telephone number of the person removing the document.Any party who obtains an order for the removal of a transcript made by the official court reporter or as directed by the ALJ or makes a copy in the OAH office may be required to pay the copying costs per Oklahoma Administrative Code 340:2-21-16.Any party seeking to remove or withdraw from the record anyoriginal exhibit must obtain authorization from an ALJ, upon a finding of good cause.The movant must file an appropriate motion and request for hearing.The moving party must give notice to non-movants and file an appropriate certificate of service. If the ALJ grants the motion, the ALJ must memorialize in a written order the basis for the good cause finding, identify the specific exhibit, require that a certified copy of that exhibit is substituted for the original in the record, and require that the substituted, certified copy is treated as if it were the original.
340:2-28-4.3. Clerk of Office of Administrative Hearings: Child Support
Revised 9-17-18
The chief court clerk and court clerks of the Office of Administrative Hearings: Child Support (OAH), isare designated and fully-empowered to perform the functions of:
(1) maintaining the case records of within OAH;
(2) maintaining and updating the court calendar, which consists of all approved hearing dates, and docketing cases on all those hearing dates,fromas contained in pleadings, orders, continuances, or prior docket sheets;
(3) preparing the dockets for hearing, and imaging into the electronic court file paper documents that have beenwere manually filed;
(4) electronically and/or manually file-stamping documents that have been electronically filed, and approving docketed hearing dates;
(5) certifying the official transcripts and documents in the court record;
(6) certifying and transmitting the record to the district court;
(7) designating a court reporter for preparation of a hearing transcript; and
(8) performing any functions delegated by the chief administrative law judge for the implementation of rules in this Subchapter and theOAH administration.
340:2-28-24. Case Record for decisionManagement
Revised 9-17-18
(a) The audio or video tape, transcript of testimony, exhibits, all papers, including electronically submitted documents, and requests filed in the proceedings, except for correspondence, including rulings and any recommended or initial decision, constitutes the exclusive record for decision by the administrative law judge (ALJ).
(b) Audio or video tapesrecordings of the hearings are the property of the Office of Administrative Hearings: Child Support (OAH), and are not available for copying, review, or transcription except as described in OACOklahoma Administrative Code 340:2-28-23, which pertains to official transcripts.Video recordings of hearings are not required to be made or maintained by OAH, even if hearings are conducted by electronic/digital video conferencing.
(b)(c) OAH manages and disposes of case records according to the Oklahoma Statutes and all applicable Oklahoma Department of Human Services and Archives and Records Commission administrative rules and policy.¢ 1
INSTRUCTIONS TO STAFF 340:2-28-24
Revised 9-17-18
1.See OKDHS:2-21-50 through 2-21-66 for regulations describing Oklahoma Department of Human Services (OKDHS)(DHS) records management and records disposition schedules.See also (OKDHS)(DHS) Records Management Handbook.
340:2-28-30. Continuances
Revised 9-17-18
(a) A party seeking a continuance must request a continuance from the assigned administrative law judge (ALJ) and give notice to the non-movants.Whether the motion is filed on paper or submitted electronically, the motion must include the reason for the continuance and be made ten days prior to the scheduled hearing date.A motion for continuance filed within ten days prior to the scheduled hearing date or orally requested at the hearing may be approved at the discretion of the assigned ALJ. If the assigned ALJ is not available, the chief ALJ may decide the motion and/or the entire action or assign another ALJ to determine the motion and/or the entire action. If an action was heard or partially-heard on the record by an ALJ, who is later unavailable, the chief ALJ or another ALJ, as designated by the chief ALJ, may continue the matter without hearing.
(b) A party does not have the authority to continue a matter set on aan ALJ's regularly- or specially-scheduled docket of an ALJ.Parties may agree to continue a docketed matter with the approval of the assigned ALJALJ's approval.Without an agreement, the motion is heard by the assigned ALJ.
(c) When an assigned ALJ is unavailable for a docket or for an action in a case, the chief ALJ may assign, another ALJ may be assigned or may direct that the unresolved matters be continued without a hearing.
(d) After one continuance has beenis granted for each party, further motions for continuances, unless agreed by all parties, are heard by an ALJ assigned to the case and are not granted, except for good cause.If the assigned ALJ is not available, the chief ALJ may decide the motion and/or the entire action or assign another ALJ to determine the motion and/or the entire action.If an action was heard or partially-heard on the record by an ALJ, who is later unavailable, the chief ALJ or another ALJ, as designated by the chief ALJ, may continue the matter without hearing.
(e) All orders for continuance must set forth the basis for the continuance.
(f) In emergency situations including, but not limited to, severe weather threats and/or impact, the chief ALJ or the assigned ALJ, with the chief ALJ's approval, may continue all cases on a docket without a hearing.
(g) An assigned ALJ or the chief ALJ may continue any case on a docket sua sponte without a hearing.
