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      RS 49:992     

  

§992. Applicability; exemptions; attorney fees; court costs

            A.(1) Prior to October 1, 1996, the provisions of the Administrative Procedure Act shall apply to all adjudications as defined by that Act.

            (2) On and after October 1, 1996, the division shall commence and handle all adjudications in the manner required by the Administrative Procedure Act provided that the provisions of that Act are not inconsistent with the provisions of this Chapter.

            B.(1) Notwithstanding any other provision of the law to the contrary except as provided by R.S. 49:967 and the provisions of this Section, all adjudications shall be resolved exclusively as required by the provisions of this Chapter and the Administrative Procedure Act.

            (2) Except in the instance of adjudications initiated pursuant to Items (D)(2)(b)(iii), (vi), and (vii) of this Section, in an adjudication commenced by the division, the administrative law judge shall issue the final decision or order, whether or not on rehearing, and the agency shall have no authority to override such decision or order. Upon the issuance of such a final decision or order, the agency or any official thereof shall comply fully with the final order or decision of the administrative law judge.

            (3)(a) Nothing in this Section shall affect the right to or manner of judicial appeal in any adjudication, irrespective of whether or not such adjudication is commenced by the division or by an agency.

            (b)(i) However, no agency or official thereof, or other person acting on behalf of an agency or official thereof, shall be entitled to judicial review of a decision made pursuant to this Chapter.

            (ii) The provisions of Item (i) of this Subparagraph shall not apply to the Department of Children and Family Services or an official thereof or other person acting on behalf of the department or official in appeals brought pursuant to Children's Code Article 616.1.1.

            C. The positions appointed by the director pursuant to this Chapter shall be in the classified service.

            D.(1) Except as provided in Paragraphs (2) through (9) of this Subsection, the provisions of this Chapter shall apply to any board, commission, department, or agency of the executive branch of state government.

            (2)(a) Except as otherwise provided in Subparagraph (b) of this Paragraph, any board, commission, department, or agency which is required, pursuant to a federal mandate and as a condition of federal funding, to conduct or to render a final order in an adjudication proceeding shall be exempt from the provisions of this Chapter to the extent of the federal mandate.

            (b) This Subparagraph shall apply to the Louisiana Department of Health, the Department of Children and Family Services, the Department of Education, and any agency within these departments:

            (i) If the department or an agency within the department is prohibited, pursuant to a federal mandate or as a condition of federal funding, from delegating by contract or other means its fair hearings function, then such fair hearings shall be exempt from the provisions of this Chapter to the extent of the federal mandate; however, if such federally mandated hearings function may be delegated by contract or other means, the department or agency shall delegate such function to the division. If the department or agency claims a federal mandate exemption, the department or agency shall have the burden of proving such exemption.

            (ii) If the department or an agency within the department is prohibited, pursuant to a federal mandate or as a condition of federal funding, from delegating by contract or other means both its fair hearings function and its authority to render a final decision or order in an adjudication proceeding, then such fair hearings and adjudication proceedings shall be exempt from the provisions of this Chapter to the extent of the federal mandate; however, if such federally mandated hearings function and authority to render a final decision or order in an adjudication proceeding may be delegated by contract or other means, the department or agency shall delegate such function and authority to the division. If the department or agency claims a federal mandate exemption, the department or agency shall have the burden of proving such exemption.

            (iii)(aa) If a department or an agency within the department may delegate its fair hearings function but is required by federal mandate to render the final decision or order in an adjudication proceeding, then in those cases, the division shall conduct the hearing and issue a recommended decision. The recommended decision shall be mailed or delivered to the head of the agency, who shall have, upon receipt of the recommended decision, thirty-five days to reject, modify, or approve the decision. If he rejects or modifies the recommended decision, he shall specify in writing the findings of fact or conclusions of law which are being rejected or modified which shall be considered to be the final decision or order in the adjudication proceeding. A copy of the department or agency's rejected or modified decision shall be forwarded to the division on the day it is issued. If the agency head does not reject or modify the recommended decision within thirty-five days, or if he approves the recommended decision, then the recommended decision of the division shall be certified as the final decision or order of the department or agency in the adjudication proceeding.

            (bb) In Temporary Assistance for Needy Families (TANF) cases, if the secretary of the Department of Children and Family Services approves, rejects, or modifies the recommended decision of the division, that approved, rejected, or modified decision shall be issued by the division as the final decision of the Department of Children and Family Services.

            (iv) The provisions of this Subparagraph shall not apply to any board which is exempt from this Chapter pursuant to Paragraph (5) of this Subsection or to any board or commission which chooses to continue to conduct hearings pursuant to Subsection G of this Section.

            (v) The division shall adjudicate within seventy-two hours of receipt all stay requests related to involuntary discharges from nursing homes. The division shall adjudicate all appeals related to involuntary discharges from nursing homes within thirty days of receipt.

            (vi) Notwithstanding any provision of law to the contrary, an adjudication of a decision by the Louisiana Department of Health to deny, suspend, or revoke the license of an outpatient abortion facility, ambulatory surgical center, home health agency, hospital, or nursing home, pursuant to R.S. 40:2009.7, 2110, 2116.37, 2141, or 2175.6 shall be heard by a three member panel of division of administrative law judges. This panel shall be deemed to meet the requirements of a panel appointed by the secretary of the Louisiana Department of Health. The three member panel shall issue a final decision or order. The final decision or order shall be appealable to the district court for the parish of East Baton Rouge.

            (vii) The provisions of this Subparagraph shall apply to hearings involving the Department of Education required under the Individuals with Disabilities Education Act, and the provisions of the Administrative Procedure Act shall not apply to these hearings. Hearings involving the Individuals with Disabilities Act shall proceed in accordance with regulations promulgated by the Board of Elementary and Secondary Education. Only an administrative law judge who has received training on the federal and state statutes and regulations with respect to children with disabilities and on educational placements in Louisiana's school systems shall conduct hearings pursuant to this Item. Any party aggrieved by the findings and decisions of the administrative law judge in hearings conducted pursuant to the Individuals with Disabilities Education Act, including local educational authorities, shall have a right to bring a civil action in state or federal court pursuant to federal law or regulation.

            (3) The office of workers' compensation administration in the Louisiana Workforce Commission shall be exempt from the provisions of this Chapter.

            (4) The office of unemployment insurance administration in the Louisiana Workforce Commission shall be exempt from this Chapter.

            (5) Except as provided in R.S. 37:21.1, state professional and occupational licensing boards shall be exempt from the provisions of this Chapter.

            (6) The Department of Agriculture and Forestry shall be exempt from the provisions of this Chapter.

            (7) All adjudications by the assistant secretary of the office of conservation pursuant to Chapters 1 and 7 of Subtitle I of Title 30 of the Louisiana Revised Statutes of 1950, except determinations of violations of laws, rules, regulations, and orders, and determinations of penalties for such violations, shall be exempt from the provisions of this Chapter.

            (8) The Public Service Commission and any entity which by law has its adjudications handled by the Public Service Commission shall be exempt from the provisions of this Chapter.

NOTE: Paragraph (D)(9) eff. until the promulgation and publication of final rules by the Dept. of Children and Family Services. See Acts 2017, No. 348.

            (9) Adjudications filed pursuant to R.S. 46:51.2 with the Department of Children and Family Services shall be exempt from the provisions of this Chapter.

NOTE: Paragraph (D)(9) eff. upon the promulgation and publication of final rules by the Dept. of Children and Family Services. See Acts 2017, No. 348.

            (9) Adjudications filed pursuant to R.S. 46:51.2, involving a risk evaluation panel decision, with the Department of Children and Family Services shall be exempt from the provisions of this Chapter.

            E. In the event that a person files a civil action to require that a state department, division, office, agency, board, commission, or other entity of state government conduct an adjudication as required by this Chapter and judgment is rendered in his favor, he shall be entitled to an award of reasonable attorney fees to be taxed as costs in the matter.

            F. The provisions of this Chapter shall apply to all adjudications as defined in the Administrative Procedure Act pursuant to the Procurement Code.

            G. Any board or commission authorized by law to conduct hearings may continue to hold such hearings.

            H.(1) If an agency or official thereof, or other person acting on behalf of an agency or official thereof, files a petition for judicial review of a final decision or order in an adjudication proceeding and such agency, official, or person does not prevail in the final disposition of the judicial review, the agency shall be responsible for the payment of reasonable attorney fees and court costs of the other party.

            (2) Notwithstanding any provision of R.S. 13:4521 to the contrary, an agency or official thereof, or other person acting on behalf of an agency or official thereof, which files a petition for judicial review of a final decision or order in an adjudication proceeding shall be required to pay court costs.

            (3) All payments for litigation expenses required by this Subsection shall be paid from the agency's regular operating budget. Each agency which has paid such litigation expenses shall submit a detailed report of all such payments from the previous fiscal year to its legislative oversight committees and to the Joint Legislative Committee on the Budget no later than November fifteenth of each year.

            Acts 1995, No. 739, §2, eff. Oct. 1, 1996; Acts 1997, No. 1172, §9, eff. June 30, 1997; Acts 1997, No. 1484, §1, eff. July 16, 1997; Acts 1999, No. 1332, §1, eff. July 12, 1999; Acts 2001, No. 527, §1; Acts 2003, No. 956, §1, eff. July 1, 2003; Acts 2003, No. 1271, §1, eff. July 11, 2003; Acts 2005, No. 204, §1; Acts 2008, No. 743, §7, eff. July 1, 2008; Acts 2009, No. 47, §2, eff. June 15, 2009; Acts 2010, No. 683, §1; Acts 2010, No. 877, §3, eff. July 1, 2010; Acts 2017, No. 348, §§4, 6, special eff. date; Acts 2018, No. 90, §1, eff. May 10, 2018; Acts 2018, No. 655, §2.

NOTE: R.S. 37:21.1 terminates on August 1, 2021. See Acts 2018, No. 655, §1.



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