Conn. Agencies Regs. § 17b-653-23 - Administrative hearing and mediation

(a) Clients or applicants who have been aggrieved by a decision made by the bureau have a right to an administrative appeal. For purposes of this subsection, an applicant or client for whom the bureau has denied mediation, in accordance with subsection (e) of this section, shall not be considered as aggrieved by a decision made by the bureau. Clients or applicants who have been aggrieved by a decision made by the bureau have a right to an administrative hearing in any of the following situations:

(1) the denial of an applicant or the denial of the right to apply or reapply for services provided by the bureau;

(2) any bureau action concerning the development, implementation, denial, suspension, reduction or termination of services under an employment plan; or

(3) unresolved disputes pertaining to the scope of services provided to the client or the applicant by the bureau.

(b) Administrative hearings shall be conducted in accordance with the Administrative Procedures Act, Connecticut General Statutes sections 4-176e to 4-181. Unless otherwise specified in sections 17b-653-1 to 17b-653-24, inclusive, of the Regulations of Connecticut State Agencies, the applicant or client has the burden of proving by a preponderance of the evidence that the bureau's decision does not comply with state or federal law or is clearly erroneous.

(c) Applicants and clients shall be informed of the right to an administrative hearing and mediation, including the name and address to which the request for an administrative hearing is to be forwarded:

(1) at the time the individual applies for vocational rehabilitation services;

(2) at the time the employment plan for the individual is developed; and

(3) upon reduction, suspension, or cessation of vocational rehabilitation services for the individual.

(d) Request for an Administrative Hearing. The client or applicant may request an administrative hearing, including mediation, in accordance with the following criteria:

(1) The request for an administrative hearing, which may include a request for mediation, shall be in writing or other mode of communication appropriate to the applicant or client's disability needs.

(2) The request shall contain a clear and concise statement of the issue for which remedy is sought.

(3) The request shall be received by the bureau director within 30 days of the latter of, as applicable:

(i) the date of notification of the bureau decision for which the client seeks redress;

(ii) mailing of the informal review decision, in accordance with section 17b-653-22; or

(iii) completion of mediation, in accordance with subsection (e) of this section.

(e) Mediation

(1) Applicants or clients who request an administrative hearing in accordance with this section may request that mediation be held prior to an administrative hearing. The bureau shall consider all such requests, and shall grant the applicant or client's request, provided both the bureau and the applicant or client agree to mediation.

(2) The bureau may deny a request for mediation where it determines that mediation is not likely to resolve the issue for which remedy is sought. In such cases, the applicant or client may request to pursue an administrative hearing.

(3) The mediation shall be conducted by an individual deemed qualified by the bureau who is trained or otherwise skilled in conducting mediation and is knowledgeable of the vocational rehabilitation program.

(4) An agreement by the bureau and the applicant or client shall be set forth in writing.

(5) The mediation shall be considered completed at such time as the signing of an agreement by the parties or formal termination of the mediation, whichever is later. In the absence of a signed agreement or formal termination, mediation shall be considered completed on the date of the last mediation session concerning the issue for which remedy is sought.

(6) Discussions that occur during the mediation process shall be confidential and shall not be used as evidence in any subsequent hearing or civil proceeding.

(7) The bureau shall choose a mediator from a list of qualified individuals maintained by the bureau.

(8) The bureau may, at its discretion, offer mediation as an option to applicants or clients other than those who have requested an administrative hearing. With the exception of subsections (e)(5), (e)(6) and (e)(9) of this section, none of the requirements in this section shall apply in such cases where the bureau is not required to offer mediation.

(9) The bureau shall not be bound by terms in a mediation agreement where the issues for which the applicant or client requested mediation are subsequently appealed in an administrative hearing or civil proceeding.

(f) Disclosure of Agency Case Record. The client or applicant may request access and disclosure of the case record in accordance with applicable laws.

(g) Service Provision During Pending Administrative Hearing.

(1) Unless the applicant or client so requests, or, in an appropriate case, the individual's representative, so requests, pending a decision by a mediator, hearing officer, or reviewing official under this section, the bureau shall not institute a suspension, reduction, or termination of services being provided for the individual, including evaluation and assessment services and plan development, unless such services have been obtained through misrepresentation, fraud, collusion, or criminal conduct on the part of the individual or the individual's representative.

(2) For purposes of this subsection, "services being provided" means:

(A) as applies to evaluation and assessment services, services needed to complete the assessment for determining eligibility and priority for services which had begun as of the time of the director's receipt of the request for a review under this section;

(B) as applies to plan development, assessment for determining rehabilitation needs which had begun at the time of the request for a review is received by the director;

(C) as applies to services under an employment plan, the specific services identified in the plan which had begun prior to the request for a review is received by the director. It includes the scope, time frames and providers specified in the employment plan.

(h) Scheduling.

(1) An administrative hearing and mediation, if requested, shall be held within a timely manner of the receipt of the request by the director;

(2) Administrative hearings and mediation shall be conducted during bureau working hours or at a time mutually agreed upon by the parties and approved by the impartial hearing officer or mediator and at an accessible location mutually agreed upon by the parties and approved by the hearing officer or mediator.

(i) Evidence in Administrative Hearing. Evidence in administrative hearing cases shall be in compliance with Section 4-178 of the Connecticut General Statutes. The client or applicant shall be afforded the opportunity to present additional evidence, information, and witnesses to the impartial hearing officer.

(j) Representation. Any applicant or client who requests an administrative hearing or mediation shall have the right to representation by counsel or other appropriate advocate of their choice. The fee for said counsel or advocate is the sole responsibility of the applicant or client.

(k) Impartial Hearing Officer. The impartial hearing officer shall conduct the administrative hearing and prepare a decision.

The impartial hearing officer shall render a written decision based on the provisions of the approved state plan, the federal Rehabilitation Act, federal regulation, and the state statutes, regulations and policy governing this program. The decision shall contain a full written report of the findings and the grounds for the decision and shall be provided to the client or applicant or, if appropriate, the individual's parent, guardian, or other representative, and to the director not more than thirty (30) calendar days of the completion of the hearing.

(l) Review of Decision:

(1) The department may establish procedures for review of the impartial hearing officer's decision by the Commissioner of Social Services. If such a procedure is established, the following shall apply:

(A) Not later than 20 days after the decision by the impartial hearing officer is rendered, either party may request that the reviewing official review the decision.

(B) Factors which the reviewing official may consider in determining whether an impartial hearing officer's decision should be reviewed include, but are not limited to:

(i) whether the initial decision is arbitrary, capricious, an abuse of discretion or otherwise unreasonable;

(ii) whether the initial decision is supported by substantial evidence, consistent with facts and applicable federal and state policy and law;

(iii) in reaching the initial decision, whether the impartial hearing officer has given appropriate and adequate interpretation to such factors as federal statutes and law; the state plan as it applies to the specific issues in question; the state procedures manual as it applies to the specific issues in question; key portions of conflicting testimony; state agency options in the delivery of services; federal or bureau policy as it relates to the issues in question.

(m) Kinds of Decisions. In rendering the decision the impartial hearing officer may, and in making the final decision the reviewing official may, take one of several courses of action which include, but are not limited to, the following:

(1) find in favor of the client or applicant;

(2) uphold the action or inaction of the bureau;

(3) accept a written withdrawal of the appeal which is signed by the client or applicant, or her or his authorized representative;

(4) accept a settlement of the issues agreed to by the parties; or

(5) default any party who fails to appear. Upon such failure, the impartial hearing officer at his or her option may issue an order disposing of the matter or may, if requested by the defaulted party within ten (10) days of default, reschedule the hearing for good cause shown.

(n) Notice of Final Decision.

(1) The decision of the impartial hearing officer shall be a final decision, unless a review is completed pursuant to subsection (l) of this section, in which case the decision of the commissioner shall become the final decision.

(2) The director shall mail a copy of the final decision to appropriate bureau staff, the client or applicant and her or his authorized representative.

(o) Extensions of Time. Except for the time limitations established in subsection (l)(1)(A) of this section, the director may grant reasonable time extensions for good cause shown at the request of a party or at the request of both parties.

(p) Appeal. Section 4-183 of the Connecticut General Statutes shall apply to appeals of the final decision in an administrative hearing.

Notes

Conn. Agencies Regs. § 17b-653-23

Adopted effective June 6, 2000