Appeals Procedures Codes

Codes

W&I Code 19704

  1. Any applicant or client of the Vocational Rehabilitation or Independent Living Services programs who is dissatisfied with any action or inaction of the Department relating to the application for or receipt of services, shall have an opportunity for a prompt administrative review by the supervisory staff of the Department and/or a formal fair hearing. Any applicant or client of the Vocational Rehabilitation program may also request mediation by a qualified impartial mediator to resolve disputes involving any action or inaction of the Department that affects the provision of vocational rehabilitation services.

  2. Any applicant, client, or former client who believes he/she has been discriminated against by a Department employee, a contractor or grantee of the Department, or an employee of a contractor or grantee based upon any of the protected statuses of race, color, religious creed, ancestry, national origin, sexual orientation, marital status, medical condition, physical or mental disability, sex, or age shall have an opportunity for a prompt administrative review by the supervisory staff or, as appropriate, by a contractor or grantee, and/or an informal Equal Employment Opportunity Counselor review followed, when necessary, by a formal investigation by the Departmentís Office of Civil Rights and Affirmative Action.

  3. The administrative review process is optional and shall not delay a fair hearing or, in the case of alleged discrimination, an informal Equal Employment Opportunity Counselor review followed, when necessary, by a formal investigation by the Department's Office of Civil Rights and Affirmative Action, unless the appellant or complainant and/or authorized representative and the Department agree to a delay. The mediation process is also optional and shall not delay a fair hearing, unless all parties agree to a continuation of the hearing.

  4. Notwithstanding (b), an applicant, client, or former client may file a formal complaint with the U.S. Department of Education, Office for Civil Rights at any time.

  5. Any service(s) currently being provided an individual under an IWRP shall not be suspended, reduced, or terminated pending a final determination pursuant to administrative review provided pursuant to Section 7353 or the final decision pursuant to Section 7358, unless:

    1. The individual or his/her authorized representative so requests; or

    2. The Department has determined that services have been obtained through misrepresentation, fraud, collusion, or criminal conduct on the part of the appellant or the appellant's authorized representative, as specified in 29 USC §722(c)(7).

Cal. Code of Regs, title 9, Sec. 7355
§ 7355. Fair Hearing Procedures.

  1. The appellant may appear alone, with the authorized representative, or be represented by the authorized representative.

  2. The Department shall be represented at the hearing by the employee who made the original decision and/or the Administrative Review Officer, or the Rehabilitation Supervisor to whom the review was delegated.

  3. The appellant and/or the authorized representative and the Department representatives shall have an opportunity to:

    1. Present evidence, information, and witnesses to the impartial hearing officer.

      1. If written evidence is presented at the hearing, three (3) copies shall be presented to the impartial hearing officer by the introducing party.

    2. Be represented by counsel or other appropriate advocate.

    3. Examine all witnesses and other relevant sources of information and evidence.

  4. All persons testifying shall be placed under oath or affirmation.

  5. The impartial hearing officer shall send a notice by certified mail, to inform any appellant or authorized representative who has failed to appear at a hearing, that he or she has 14 days from the date the notice was mailed to submit a written request for another appearance before the impartial hearing officer. The hearing shall be rescheduled only if the appellant or authorized representative shows good cause for his or her failure to appear.

  6. The impartial hearing officer shall dismiss an appeal if any condition specified below exists. The appellant or authorized representative has failed to:

    1. Respond within the time period specified in (e) to request a rescheduled hearing.

    2. Show good cause for the failure to appear at the hearing.

    3. File a timely request for fair hearing as specified in Sections 7353(f) and 7354(a).

    4. Raise an issue within the jurisdiction of the impartial hearing officer.

29 USC Sec. 722(c)(1)

Sec. 722. Eligibility and individualized plan for employment

(c) Procedures

  1. In general

Each State shall establish procedures for mediation of, and procedures for review through an impartial due process hearing of, determinations made by personnel of the designated State unit that affect the provision of vocational rehabilitation services to applicants or eligible individuals.

34 CFR 361.57

Review of determinations made by designated State unit personnel.

  1. Procedures. The designated State unit must develop and implement procedures to ensure that an applicant or eligible individual who is dissatisfied with any determination made by personnel of the designated State unit that affects the provision of vocational rehabilitation services may request, or, if appropriate, may request through the individual's representative, a timely review of that determination. The procedures must be in accordance with paragraphs (b) through (k) of this section:

  2. General requirements--

    1. Notification. Procedures established by the State unit under this section must provide an applicant or eligible individual or, as appropriate, the individual's representative notice of--

      1. The right to obtain review of State unit determinations that affect the provision of vocational rehabilitation services through an impartial due process hearing under paragraph (e) of this section;

      2. The right to pursue mediation under paragraph (d) of this section with respect to determinations made by designated State unit personnel that affect the provision of vocational rehabilitation services to an applicant or eligible individual;

      3. The names and addresses of individuals with whom requests for mediation or due process hearings may be filed;

      4. The manner in which a mediator or impartial hearing officer may be selected consistent with the requirements of paragraphs (d) and (f) of this section; and

      5. The availability of the client assistance program, established under 34 CFR part 370, to assist the applicant or eligible individual during mediation sessions or impartial due rocess hearings.

    2. Timing. Notice described in paragraph (b)(1) of this section must be provided in writing--

      1. At the time the individual applies for vocational rehabilitation services under this part;

      2. At the time the individual is assigned to a category in the State's order of selection, if the State has established an order of selection under Sec. 361.36;

      3. At the time the IPE is developed; and

      4. Whenever vocational rehabilitation services for an individual are reduced, suspended, or terminated.

    3. Evidence and representation. Procedures established under this section must--

      1. Provide an applicant or eligible individual or, as appropriate, the individual's representative with an opportunity to submit during mediation sessions or due process hearings evidence and other information that supports the applicant's or eligible individual's position; and

      2. Allow an applicant or eligible individual to be represented during mediation sessions or due process hearings by counsel or other advocate selected by the applicant or eligible individual.

    4. Impact on provision of services. The State unit may not institute a suspension, reduction, or termination of vocational rehabilitation services being provided to an applicant or eligible individual, including evaluation and assessment services and IPE development, pending a resolution through mediation, pending a decision by a hearing officer or reviewing official, or pending informal resolution under this section unless--

      1. The individual or, in appropriate cases, the individual's representative requests a suspension, reduction, or termination of services; or

      2. The State agency has evidence that the services have been obtained through misrepresentation, fraud, collusion, or criminal conduct on the part of the individual or the individual's representative.

    5. Ineligibility. Applicants who are found ineligible for vocational rehabilitation services and previously eligible individuals who are determined to be no longer eligible for vocational rehabilitation services pursuant to Sec. 361.43 are permitted to challenge the determinations of ineligibility under the procedures described in this section.

  3. Informal dispute resolution. The State unit may develop an informal process for resolving a request for review without conducting mediation or a formal hearing. A State's informal process must not be used to deny the right of an applicant or eligible individual to a hearing under paragraph (e) of this section or any other right provided under this part, including the right to pursue mediation under paragraph (d) of this section. If informal resolution under this paragraph or mediation under paragraph (d) of this section is not successful in resolving the dispute within the time period established under paragraph (e)(1) of this section, a formal hearing must be conducted within that same time period, unless the parties agree to a specific extension of time.

  4. Mediation.

    1. The State must establish and implement procedures, as required under paragraph (b)(1)(ii) of this section, to allow an applicant or eligible individual and the State unit to resolve disputes involving State unit determinations that affect the provision of vocational rehabilitation services through a mediation process that must be made available, at a minimum, whenever an applicant or eligible individual or, as appropriate, the individual's representative requests an impartial due process hearing under this section.

    2. Mediation procedures established by the State unit under paragraph (d) must ensure that--

      1. Participation in the mediation process is voluntary on the part of the applicant or eligible individual, as appropriate, and on the part of the State unit;

      2. Use of the mediation process is not used to deny or delay the applicant's or eligible individual's right to pursue resolution of the dispute through an impartial hearing held within the time period specified in paragraph (e)(1) of this section or any other rights provided under this part. At any point during the mediation process, either party or the mediator may elect to terminate the mediation. In the event mediation is terminated, either party may pursue resolution through an impartial hearing;

      3. The mediation process is conducted by a qualified and impartial mediator, as defined in Sec. 361.5(b)(43), who must be selected from a list of qualified and impartial mediators maintained by the State--

        1. On a random basis;

        2. By agreement between the director of the designated State unit and the applicant or eligible individual or, as appropriate, the individual's representative; or

        3. In accordance with a procedure established in the State for assigning mediators, provided this procedure ensures the neutrality of the mediator assigned; and

      4. Mediation sessions are scheduled and conducted in a timely manner and are held in a location and manner that is convenient to the parties to the dispute.

    3. Discussions that occur during the mediation process must be kept confidential and may not be used as evidence in any subsequent due process hearings or civil proceedings, and the parties to the mediation process may be required to sign a confidentiality pledge prior to the commencement of the process.

    4. An agreement reached by the parties to the dispute in the mediation process must be described in a written mediation agreement that is developed by the parties with the assistance of the qualified and impartial mediator and signed by both parties. Copies of the agreement must be sent to both parties.

    5. The costs of the mediation process must be paid by the State. The State is not required to pay for any costs related to the representation of an applicant or eligible individual authorized under paragraph (b)(3)(ii) of this section.

  5. Impartial due process hearings. The State unit must establish and implement formal review procedures, as required under paragraph (b)(1)(i) of this section, that provide that--

    1. A hearing conducted by an impartial hearing officer, selected in accordance with paragraph (f) of this section, must be held within 60 days of an applicant's or eligible individual's request for review of a determination made by personnel of the State unit that affects the provision of vocational rehabilitation services to the individual, unless informal resolution or a mediation agreement is achieved prior to the 60th day or the parties agree to a specific extension of time;

    2. In addition to the rights described in paragraph (b)(3) of this section, the applicant or eligible individual or, if appropriate, the individual's representative must be given the opportunity to present witnesses during the hearing and to examine all witnesses and other relevant sources of information and evidence;

    3. The impartial hearing officer must--

      1. Make a decision based on the provisions of the approved State plan, the Act, Federal vocational rehabilitation regulations, and State regulations and policies that are consistent with Federal requirements; and

      2. Provide to the individual or, if appropriate, the individual's representative and to the State unit a full written report of the findings and grounds for the decision within 30 days of the completion of the hearing; and

    4. The hearing officer's decision is final, except that a party may request an impartial review under paragraph (g)(1) of this section if the State has established procedures for that review, and a party involved in a hearing may bring a civil action under paragraph (i) of this section.

  6. Selection of impartial hearing officers. The impartial hearing officer for a particular case must be selected--

    1. From a list of qualified impartial hearing officers maintained by the State unit. Impartial hearing officers included on the list must be--

      1. Identified by the State unit if the State unit is an independent commission; or

      2. Jointly identified by the State unit and the State Rehabilitation Council if the State has a Council; and

      1. On a random basis; or

      2. By agreement between the director of the designated State unit and the applicant or eligible individual or, as appropriate, the individual's representative.

  7. Administrative review of hearing officer's decision. The State may establish procedures to enable a party who is dissatisfied with the decision of the impartial hearing officer to seek an impartial administrative review of the decision under paragraph (e)(3) of this section in accordance with the following requirements:

    1. A request for administrative review under paragraph (g) of this section must be made within 20 days of the mailing of the impartial hearing officer's decision.

    2. Administrative review of the hearing officer's decision must be conducted by--

      1. The chief official of the designated State agency if the State has established both a designated State agency and a designated State unit under Sec. 361.13(b); or

      2. An official from the office of the Governor.

    3. The reviewing official described in paragraph (g)(2)(i) of this section--

      1. Provides both parties with an opportunity to submit additional evidence and information relevant to a final decision concerning the matter under review;

      2. May not overturn or modify the hearing officer's decision, or any part of that decision, that supports the position of the applicant or eligible individual unless the reviewing official concludes, based on clear and convincing evidence, that the decision of the impartial hearing officer is clearly erroneous on the basis of being contrary to the approved State plan, the Act, Federal vocational rehabilitation regulations, or State regulations and policies that are consistent with Federal requirements;

      3. Makes an independent, final decision following a review of the entire hearing record and provides the decision in writing, including a full report of the findings and the statutory, regulatory, or policy grounds for the decision, to the applicant or eligible individual or, as appropriate, the individual's representative and to the State unit within 30 days of the request for administrative review under paragraph (g)(1) of this section; and

      4. May not delegate the responsibility for making the final decision under paragraph (g) of this section to any officer or employee of the designated State unit.

    4. The reviewing official's decision under paragraph (g) of this section is final unless either party brings a civil action under paragraph (i) of this section.

  8. Implementation of final decisions. If a party brings a civil action under paragraph (h) of this section to challenge the final decision of a hearing officer under paragraph (e) of this section or to challenge the final decision of a State reviewing official under paragraph (g) of this section, the final decision of the hearing officer or State reviewing official must be implemented pending review by the court.

  9. Civil action.

    1. Any party who disagrees with the findings and decision of an impartial hearing officer under paragraph (e) of this section in a State that has not established administrative review procedures under paragraph (g) of this section and any party who disagrees with the findings and decision under paragraph (g)(3)(iii) of this section have a right to bring a civil action with respect to the matter in dispute. The action may be brought in any State court of competent jurisdiction or in a district court of the United States of competent jurisdiction without regard to the amount in controversy.

    2. In any action brought under paragraph (i) of this section, the court--

      1. Receives the records related to the impartial due process hearing and the records related to the administrative review process, if applicable;

      2. Hears additional evidence at the request of a party; and

      3. Basing its decision on the preponderance of the evidence, grants the relief that the court determines to be appropriate.

  10. State fair hearing board. A fair hearing board as defined in Sec. 361.5(b)(22) is authorized to carry out the responsibilities of the impartial hearing officer under paragraph (e) of this section in accordance with the following criteria:

    1. The fair hearing board may conduct due process hearings either collectively or by assigning responsibility for conducting the hearing to one or more members of the fair hearing board.

    2. The final decision issued by the fair hearing board following a hearing under paragraph (j)(1) of this section must be made collectively by, or by a majority vote of, the fair hearing board.

    3. The provisions of paragraphs (b)(1), (2), and (3) of this section that relate to due process hearings and of paragraphs (e), (f), (g), and (h) of this section do not apply to fair hearing boards under this paragraph (j).