Hawaii Administrative Rules › Title 17 - DEPARTMENT OF HUMAN SERVICES › Department of Human Services › Chapter 400.1 - VOCATIONAL REHABILITATION ADMINISTRATION › Section 17-400.1-7 - Hearing

Current through June, 2024
(a) The following hearing procedures shall be
				followed whenever an applicant or eligible individual or, as appropriate,
				individual's representative requests for a review of a determination made by
				personnel of the division that affects the provision of VR services or general
				services for the blind to the individual, unless informal resolution or a
				mediation agreement is achieved prior to hearing:
(1) The hearing (formal due process hearing)
				must be held within 60 days of the date of the receipt of an applicant's or
				eligible individual's or, as appropriate, individual's representative's request
				for review, unless informal resolution or a mediation agreement is achieved
				prior to the 60th day of the request for review, or
				the parties agree to a specific extension of time.
(2) The hearing shall be conducted by a
				qualified and impartial hearing officer defined as follows:
(A) Is not an employee of a public agency
				other than an employee of a public agency who is an administrative law judge,
				hearing examiner, or employee of an institution of higher education;
(B) Is not a member of the State
				Rehabilitation Council for the division;
(C) Has not been involved previously in the
				vocational rehabilitation of the applicant or eligible individual;
(D) Has knowledge of the delivery of VR
				services, the State plan under section 101 of the Act, and the Federal and
				State rules governing the provision of VR services;
(E) Has received training with respect to the
				performance of official duties; and
(F) Has no personal or financial interest
				that would be in conflict with the objectivity of the individual.
(3) The division shall maintain a
				list of qualified and impartial hearing officers.
(A) The list shall be jointly identified by
				the division and members of the State Rehabilitation Council.
(B) The applicant or eligible individual or,
				as appropriate, individual's representative, must select a first and second
				choice of impartial hearing officers from the list of qualified and impartial
				hearing officers:
(i) By a random method,
				from numbered chips corresponding to the names on the division's list of
				qualified and impartial hearing officers; or
(ii) By name, from the list of qualified and
				impartial hearing officers, in the order of preference of the individual or
				individual's representative.
(C) The individual or individual's
				representative shall be informed that the purpose for naming a second choice is
				to avoid delay should the impartial hearing officer of first choice not be
				available, and that the individual or individual's representative will be
				provided opportunity for further selection if the hearing officer of first and
				second choice is not available.
(D)
				The individual's or individual's representative's selection shall be documented
				on the division's form for selection of impartial hearing officer, and filed in
				the division's record of services for the individual. A copy shall be given to
				the individual or individual's representative as early as possible.
(E) A copy of the completed selection form
				and other necessary documents shall be immediately forwarded to the division
				administrator.
(4) An
				applicant or eligible individual or, as appropriate, the individual's
				representative shall be provided opportunity to submit during the hearing,
				evidence and other information that supports the applicant's or eligible
				individual's position. However, discussions that occurred during the mediation
				process described in section 17-400.1-6 shall be confidential and may not be
				used as evidence in any due process hearing or civil proceeding pursuant to
				section 17-400.1-6(c) (4).
(5) An
				applicant or eligible individual shall be allowed to be represented during the
				hearing by counsel or other advocate selected by the applicant or eligible
				individual. In addition, the applicant or eligible individual or, as
				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.
(6) Interpreter or reader services shall be
				arranged by the division for an applicant or eligible individual or, as
				appropriate, individual's representative, who is non English-speaking or who is
				deaf, blind, or deaf-blind.
(7) The
				division may pay for transportation of the individual to and from the place of
				the hearing when the individual is unable to meet such costs and requests for
				payment by the division, but the division is not required to pay for any costs
				related to the representative authorized under paragraph (5).
(8) A written position statement explaining
				the reasons for the division's action or decision, and citing the authority or
				the specific sections of the State plan, statutes, rules or policy on which the
				decision was based, shall be submitted to the impartial hearing officer and the
				applicant or eligible individual or, as appropriate, individual's
				representative in advance of the hearing. A copy of this statement shall be
				filed in the division's record of services for the individual.
(9) The division may not institute a
				suspension, reduction, or termination of VR services being provided to an
				applicant or eligible individual, including evaluation and assessment services
				and IPE development, pending a resolution through hearing under this section,
				unless:
(A) The individual or, in appropriate
				cases, the individual's representative requests a suspension, reduction, or
				termination of services; or
(B) The
				division 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.
(10) Notice of hearing shall be issued by the
				impartial hearing officer in writing and sent by certified mail with return
				receipt requested at least 15 days before the hearing. The notice shall include
				a statement of:
(A) The date, time, place and
				nature of hearing;
(B) The legal
				authority under which the hearing is to be held;
(C) The particular sections of the statutes
				and rules involved;
(D) An explicit
				statement in plain language of the issues involved and the facts alleged by the
				division in support thereof, provided that the initial notice may be limited to
				a statement of the issues involved if the division is unable to state such
				issues and facts in detail at the time the notice is served, and furnishes a
				bill of particulars thereafter upon application; and
(E) The fact that any party may retain
				counsel if the party so desires and the fact that the individual is allowed to
				be represented by counsel or other appropriate advocate.
(11) The hearing may be postponed at the
				request of the individual or, as appropriate, individual's representative, or
				the division administrator. Reasonable extension of time for good cause shown
				at the request of a party or at the request of both parties shall be
				allowed.
(12) A hearing may be
				canceled only if the following occurs:
(A) The
				individual or, as appropriate, individual's representative, fails to appear.
(i) The appropriate branch administrator
				shall determine cause for failure to appear.
(ii) If for good cause (e.g. unable to call
				or appear due to emergency hospitalization on the day of the hearing), and the
				individual or individual's representative shows continued desire and interest
				for a hearing, the branch administrator shall submit a written decision to the
				impartial hearing officer to allow for rescheduling of the hearing. The hearing
				shall be rescheduled and conducted by the impartial hearing officer within
				three weeks following receipt of the branch administrator's written decision
				with the understanding of the parties that the three week period shall satisfy
				any need for specific extension of time beyond the required 60-day time period
				for conducting the hearing.
(iii)
				If without good cause (e.g. could have notified the hearing officer or division
				of need to reschedule but failed to do so, and failed to appear), the
				individual's or, as appropriate, individual's representative's failure to
				appear shall be treated as a final decision to terminate the request for
				review.
(iv) The branch
				administrator shall inform the individual or, as appropriate, individual's
				representative, the division administrator, and the impartial hearing officer
				of the branch administrator's decision and reasons, in writing.
(v) A copy of the branch administrator's
				decision shall be filed in the division's record of services for the
				individual.
(B) The
				individual or, as appropriate, individual's representative requests for
				cancellation of the hearing.
(i) The
				individual or, as appropriate, individual's representative's request for
				cancellation shall be acknowledged in writing by the branch
				administrator.
(ii) The branch
				administrator shall also notify the individual or, as appropriate, individual's
				representative of the individual's right to reactivate the request for hearing
				if the individual wishes within 30 days of the date of the notice of
				cancellation.
(C)
				Corrective action, by the division, is taken before the hearing and agreed to
				by the individual or, as appropriate, individual's representative.
(i) The branch administrator shall seek a
				cancellation with the applicant or eligible individual or, as appropriate,
				individual's representative and acknowledge the cancellation in
				writing.
(ii) All actions taken and
				results obtained shall be documented and reported to the division
				administrator. A copy of the documentation shall be filed in the division's
				record of services for the individual.