Section 33-03-10.1-09 - Appeals1. An agency dissatisfied with a decision on a timely request for reconsideration, which conforms to the requirements of subsection 2 of section 33-03-10.1-08, may appeal. An appeal may be perfected by mailing or delivering the information described in subdivisions a through d, to the department, state capitol, Bismarck, North Dakota, so that the mailed or delivered material arrives at the office of the division of health facilities on or before 5:00 p.m. on the thirty-first day after the date of the determination the department made with respect to a request for reconsideration. An appeal under this section is perfected only if accompanied by written documents, including all of the following information: a. A copy of the notice received from the department advising of the department's decision on the request for reconsideration; b. A statement of each disputed violation and the reason or basis in fact for the dispute; c. The authority in statute or rule upon which the appealing party relies for each disputed item; and d. The name, address, and telephone number of the person upon whom all notices will be served regarding the appeal. 2. Except as otherwise provided in this section, the appeal must be considered as provided in 98-02. 3. The dispositive issue on appeal must be whether the violation occurred, not whether the violation has been corrected. 4. The hearing officer must make written findings of fact and conclusions of law, and must recommend a decision to the department. The recommended decision must set forth the reasons for the decision and the evidence upon which the decision is based. 5. The department may accept, modify, or reject the recommended decision. If the department rejects the recommended decision, it may remand the matter to the office of administrative hearings with directions. The department, through its directions, may require the receipt of additional evidence, and the submission of amended findings of fact, conclusions of law, and recommended decision which reflect consideration of additional evidence. The department, through its directions, may require that the matter be referred to the same or a different hearing officer and the office of administrative hearings shall comply with that direction unless compliance is impossible. 6. An appeal may not suspend or delay the imposition of a remedy under this chapter. N.D. Admin Code 33-03-10.1-09
Effective January 1, 1998.General Authority: NDCC 23-01-04, 23-17.3-08
Law Implemented: NDCC 23-17.3-07, 23-17.3-08