Sec.17a-101k-8. Conduct of the administrative hearing

(a) The administrative hearing shall be conducted by a hearing officer designated by the commissioner or designee. The agency's case may be presented by any agency employee or other designee of the commissioner. The person requesting the hearing may be represented by legal counsel, except that the department shall have no obligation to appoint or retain counsel for any person.

(b) The hearing officer shall have the power to administer oaths and affirmations, subpoena witnesses and require the production of records, physical evidence, papers and documents to any hearing held in the case.

(c) The hearing officer shall have the authority to limit witnesses and take any other necessary actions that will facilitate the hearing process.

(d) No pre-hearing discovery shall be permitted except for the opportunity to inspect and copy relevant and material records, papers and documents.

(e) The department may amend its allegation(s) at any time prior to or at the start of the hearing, provided that such amendment is in writing and that the appellant shall be granted, upon request, a continuance for the purpose of preparing a response to the amended allegation(s).

(f) The department's investigative record including protocol, medical records and other materials used to substantiate abuse or neglect or to make the registry finding, and any relevant documents submitted to the department by the individual responsible for use during the internal review shall be admitted as part of the hearing record.

(g) Any oral or documentary evidence may be received provided: (1) the hearing officer shall limit or exclude any evidence that is irrelevant, immaterial or unduly repetitious; (2) the hearing officer shall recognize the rules of privilege governing confidential professional communications; (3) when a hearing will be expedited and the interests of the parties will not be prejudiced substantially, any part of the evidence may be received in written form; (4) documentary evidence may be received in the form of copies or excerpts, if the original is not readily available, and, upon request, parties shall be given an opportunity to compare the copy with the original; (5) notice may be taken of generally recognized technical or scientific facts within common knowledge or the agency's specialized knowledge; (6) parties shall be notified in a timely manner of any material noticed, including any agency memoranda or data, and they shall be afforded an opportunity to contest the material so noticed; (7) the agency's experience, technical compliance, and specialized knowledge may be used in the evaluation of the evidence; (8) all parties and their attorneys shall be permitted to examine all records and documents introduced by the parties to the hearing. Should any record or document that a party was not permitted to examine in advance of the hearing be introduced, that party may request a continuance, which may be granted at the discretion of the hearing officer, to allow the requesting party an opportunity to prepare a response to the record or document; and (9) a party may present evidence and argument in support of his position on all issues involved and cross-examine witnesses presented by the opposing party or parties.

(h) The abused or neglected child who is the subject of the substantiation shall not testify in an administrative hearing while that child is still a minor.

(i) The full proceedings of administrative hearings shall be audio recorded.

(j) In an administrative hearing, the burden of proof shall be on the department to prove by a fair preponderance of the evidence submitted at the hearing, that (1) the allegations of at least one substantiation; and (2) if applicable, the registry finding, was based on the proper application of the criteria set forth in section 17a-101k-3 of the Regulations of Connecticut State Agencies.

(k) The hearing shall be limited to the evidence available to the department at the time of the internal review, except that a party may be permitted to introduce additional evidence if the hearing officer finds, after an offer of proof, that the additional evidence is relevant and material, that the introduction of such evidence will promote the interests of justice, and that, in the exercise of due diligence, the additional evidence could not have been available to and considered by the department during the investigation or by the internal reviewer.

(Adopted effective November 7, 2008)