(b) Type of hearing or review.

1. (1) For purposes of this subpart, whenever the Department is required to afford a debtor a hearing, the Department shall provide the debtor with a reasonable opportunity for an oral hearing when the hearing official determines that the issues in dispute cannot be resolved by review of the documentary evidence, for example, when the validity of the claim turns on the issue of credibility or veracity.
2. (2) If a hearing official determines that an oral hearing is appropriate, the time and location of the hearing, including the amount of time allotted for the hearing, shall be at the discretion of the hearing official. An oral hearing may, at the discretion of the hearing official, be conducted either in-person, by telephone conference, or by other electronic means. All travel expenses incurred by the debtor in connection with an in-person hearing will be borne by the debtor. All charges incurred during the hearing as a result of the use of telephone conference or other electronic means will be the responsibility of the Department.
3. (3) In those cases when an oral hearing is not required by this section, a hearing official shall nevertheless accord the debtor a “paper hearing,” that is, a hearing official will decide the issues in dispute based upon a review of the written record. The hearing official will establish a reasonable deadline for the submission of evidence.

(e) Procedure. After the debtor requests a hearing, the hearing official shall notify the debtor of:

1. (1) The date and time of a hearing conducted by telephone conference or other electronic means;
2. (2) The date, time, and location of an in-person oral hearing; or

3. (3) The deadline for the submission of evidence for a written hearing.

   (f) Burden of proof. (1) The agency will have the burden of going forward to prove the existence or amount of the debt. The Department can satisfy this burden by submitting a certified copy of the adjudication or other document that establishes the existence of the debt and the amount of the debt.

4. (2) Thereafter, if the debtor disputes the existence or amount of the debt, the debtor must show by a preponderance of the evidence that no debt exists or that the amount of the debt is incorrect. In addition, the debtor may present evidence that:

   1. (i) The terms of the repayment schedule are unlawful;
   2. (ii) The terms would cause a financial hardship to the debtor; or
   3. (iii) The collection of the debt may not be pursued due to operation of law.

5. (3) Debts that arise under the Federal Employees Compensation Act, 5 U.S.C. 8101-8193, are subject to preclusion of administrative and judicial review, as described at 5 U.S.C. 8128(b). As a result, once the Department meets its burden of showing the existence and amount of a debt under this statute, the debtor must prove by a preponderance of the evidence that:

   1. (i) The documentation put forward by the agency to establish the debt was not authentic; or

   2. (ii) The debt was incurred by someone other than the debtor as a result of identity theft.

      (g) Record. The hearing official must maintain a summary record of any hearing provided under this section.

      (h) Hearing procedure. A hearing is an informal process and the hearing official is not bound by common law or statutory rules of evidence or by technical or formal rules of procedure. However, witnesses who testify in oral hearings must do so under affirmation, so that 18 U.S.C. 1001 applies.

      (i) Date of decision. The hearing official shall issue a written opinion stating his or her decision, as soon as practicable, but not later than 60 days after the date on which the request for such hearing was received. If a hearing official is unable to provide the debtor with a hearing and render a decision within 60 days after the receipt of the request for such hearing:

   3. (1) The Department may not issue a withholding order until the hearing is held and a decision rendered; or

   4. (2) If the Department had previously issued a withholding order to the debtor's employer, the Department must suspend the withholding order beginning on the 61st day after the receipt of the hearing request and continuing until a hearing is held and a decision is rendered.

      (j) Content of decision. The written decision shall include:

   5. (1) A summary of the facts presented;
   6. (2) The hearing official's findings, analysis, and conclusions; and

   7. (3) The terms of any repayment schedules, if applicable.

      (k) Final agency action. The hearing official's decision will be the final agency action for the purposes of judicial review under the Administrative Procedure Act, 5 U.S.C. 701-706.

      (l) Failure to appear. In the absence of good cause shown to the hearing official, a debtor who fails to appear at a hearing scheduled pursuant to this section will be deemed as not having timely filed a request for a hearing.