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(a) The Department may withdraw a request for an ADH at any time before the scheduled hearing by sending written notice to the Division of Adjudication and any party. (4) The Division of Adjudication may combine a fair hearing and an ADH into a single hearing if the relevant factual issues arise out of the same or related circumstances. (a) The notice of hearing shall indicate whether a fair hearing and an ADH will be combined into a single hearing. (b) If the hearings are combined, the applicable filing deadline and hearing timeframe are those contained in this section to the extent of any conflict. (c) If the provider fails to appear or participate in the combined hearing, the fair hearing will be dismissed but the ADH will still be held. (5) The ALJ shall advise a witness that the witness has the right to refuse to answer any question during the hearing, and that the ALJ may draw any reasonable adverse inference based on a party's refusal to answer a question during the hearing. (6) A qualified employee of the Department shall represent the Department at the ADH. (7) If any party fails to participate in the hearing and disagrees with the hearing decision, the party may request reopening of the hearing as set forth in Section R986-100-131. (8) Within 90 days of the date the notice of hearing is issued, the ALJ shall conduct the hearing, arrive at a decision, and issue written notice of the decision to the Department and each party. If the ADH is postponed for any reason, the 90-day time limit will be extended by as many days as the ADH is postponed. (a) The ALJ shall determine if the provider should be disqualified pursuant to Section R986-700-734. (9) The ALJ is not required to disqualify a provider based solely upon a finding of IPV. If the ALJ determines the provider's conduct does not warrant disqualification, the Department may establish an overpayment pursuant to Section R986-700- 731, assess a penalty pursuant to Section R986-700-732, and take remedial action pursuant to Subsection R986-700-727(6). (10) Any party, including the Department, may request a further appeal pursuant to Section 63G-4-402 of the Administrative Procedures Act, Section R986-100-135, and Subsection R986-100-735(3). R986-700-734. Approved Provider Disqualification. (1) When determining whether to disqualify a provider from approved provider status the Department may consider: (a) the seriousness of offense or offenses; (b) the extent of offense or offenses; (c) a history of adjudicated overpayments or IPVs; (d) previous imposition of increased monitoring or remedial action by the Department; (e) failure to comply with monitoring or remedial action by the Department; (f) the extent of notice, education, or warning given to the provider by the Department pertaining to the offense or offenses for which the provider is being considered for disqualification; (g) the adequacy of assurances by the provider that the provider will comply prospectively with each Department and OCC requirement related to the offense; and (h) whether a lesser sanction will be sufficient to remedy the problem. (2) Disqualification period. (a) The first disqualification assessed against a provider shall be 12 months. (b) The second disqualification assessed against a provider shall be 24 months. (c) The third disqualification assessed against a provider shall be a lifetime disqualification. (3) A provider that has been disqualified pursuant to Sections R986-700-733 and R986-700-734: (a) may not receive an enhanced subsidy grant (ESG), a state-funded grant, or other CCDF funding during the disqualification period; and (b) will remain ineligible for any CC payment, ESG, state-funded grant, or other CCDF funding until any overpayment and penalty established in conjunction with the disqualification has been satisfied in full. (4) A disqualification is effective two benefit months from the date of the ALJ order. (5) A disqualification will take effect even if the provider files an appeal pursuant to Section 63G-4-402 of the Administrative Procedures Act, Section R986-100-135, and Subsection R986-100-735(3). (6) Disqualifications run concurrently. (7) A disqualification assessed to a provider will follow the facility, any successor facility, and a principal of the facility. (a) A "successor facility" is any facility that acquires the business or acquires substantially all the assets of a facility that has been disqualified. This includes a facility whose provider changes from one status to another; such as a provider who was disqualified as a licensed family provider who then changes to be a license exempt provider. (b) "Acquired" means to come into possession of, obtain control of, or obtain the right to use the assets of a business by any legal means including a gift, lease, repossession, or purchase. For purposes of succession, a purchase through bankruptcy court proceedings where assets are being liquidated is not considered an acquisition, if the court places restrictions on the transfer of liability to the purchaser. It is not necessary to purchase the assets to have acquired the right to their use, nor is it necessary for the predecessor to have actually owned the assets for the successor to have acquired them. The right to the use of the asset is the determining factor. (c) "Assets" include any property, tangible or intangible, which has value. Assets may include the acquisition of the name of the business, customers, accounts receivable, patent rights, goodwill, employees, or an agreement by the predecessor not to compete.