1) Hearing Officer's Introduction

The hearing officer will open the hearing, will identify the individuals and roles of those in attendance, and generally "set the stage" to assure the appellant or claimant of his right to be heard. In addition, the hearing officer will administer an oath to all witnesses and parties expected to present testimony at the hearing. The hearing officer may, in his discretion, deal with any preliminary matters prior to beginning the case.

2) Manner of Proceeding

The hearing officer shall conduct the hearing in an informed fashion, consistent however with the procedural rights of the Department and the appellant or claimant to a courteous, fair, and fairly conducted hearing consistent with due process and the requirements of the federal regulation. Parties will be courteous to each other and the hearing officer at all times and will obey the orders and rulings of the hearing officer.

3) Order of Presentation

a) Opening Remarks.

At the discretion of the hearing officer, the Department and the claimant will each be given an opportunity to make brief opening statements. An opening statement shall advise the hearing officer of the issues a party contends are a part of the case and shall briefly summarize how the party's case will be proven. The hearing officer may terminate or limit any opening statement which is unduly lengthy, repetitive or irrelevant.

b) The moving party will present its case first. The burden of proof is on the moving party. The moving party is the party to the hearing seeking a change in the status quo ante. The Department is the moving party for actions to discontinue, terminate, suspend, or reduce assistance. The appellant or claimant is the moving party for actions relating to initial ineligibility determinations, the initial denials of claims or the failure to act upon a claim with reasonable promptness. Each party’s case shall include the presentation of witnesses to give testimony and documents and other evidence offered to prove its case. The other party may cross- examine each witness and may raise any legal basis for exclusion of any evidence at appropriate times during the hearing. Witnesses may be sequestered by or with the approval of the hearing officer.

c) Each party may present witnesses to give testimony and other evidence which is admissible to support its case. However, the non-moving party need not present any evidence, but may rely upon the moving party's failure to prove an essential element of its case. If evidence or testimony is presented, the other party shall have the opportunity to raise any legal basis for its exclusion and the opportunity to cross examine witnesses at the appropriate time during the proceeding.

d) If the non-moving party has presented evidence, the moving party may, in the discretion of the hearing officer, present rebuttal evidence.

e) Closing Remarks.

The parties will be given an opportunity to briefly summarize their cases in closing remarks. Such closing remarks may summarize evidence and present legal argument for the adoption of one position against the adoption of the other. However, the hearing officer may limit or terminate unduly lengthy, repetitive, or irrelevant closing remarks.

4) Role of Hearing Officer

The hearing officer is in charge of running the hearing. The hearing officer shall make all rulings on the admissibility of evidence as to how the proceedings are conducted. The hearing officer may question witnesses or direct the parties to produce evidence which the hearing officer determines is necessary for a decision in the case. However, other than ensuring that the hearing is conducted fairly, the hearing officer is not permitted to assist either party in the presentation of the case.

5) Decisions of the Hearing Officer

Decisions of the State hearing officer will be based exclusively on evidence introduced at the hearing. The decision of the hearing officer will be issued not more than 90 days from the date the request for a fair hearing is filed or more than 30 days from the date the hearing is conducted. The decision of the hearing officer is the final decision of the agency. Judicial review, pursuant to 31 Del.C. 520, may be taken directly from the hearing officer's decision, within thirty (30) days of the decision.

11 DE Reg. 1482 (05/01/08)