Section 17-400.1-7 - Hearing(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.(b) The impartial hearing officer selected in accordance with subsection (a)(3), shall be compensated for conducting the hearing at a rate determined by the division, and shall preside over the entire proceeding and must: (1) Make a decision based on the provisions of the approved State plan, the Act, Federal VR regulations, and applicable State rules and policies that are consistent with Federal requirements; and(2) Provide to the individual or, if appropriate, individual's representative and the division administrator, a full written report of the findings and grounds for the decision within 30 days of the completion of the hearing.(c) The hearing officer's decision is final, except that any party involved in a hearing who is dissatisfied with the hearing officer's decision may bring a civil action under subsection (d). (1) If a party brings a civil action under subsection (d) to challenge the final decision of a hearing officer, the final decision of the hearing officer must be implemented pending review by the court.(2) All matters relating to the hearing shall be heard and disposed of within 90 days from the date of the request for review, except in those cases where: (A) The individual withdraws or abandons the request for a hearing; or(B) The matter is postponed for good cause. The time limit shall be extended only for the period of the continuance.(d) Any party involved in a hearing who disagrees with the findings and decision of an impartial hearing officer under subsection (c) has a right to bring a civil action with respect to the matter in dispute. (1) 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 this subsection, the court:(A) Receives the records related to the hearing;(B) Hears additional evidence at the request of a party to the action; and(C) Grants the relief that the court determines to be appropriate, basing its decision on the preponderance of the evidence.Haw. Code R. § 17-400.1-7
[Eff AUG 13 2007] (Auth: HRS §§ 347-4, 348-3, 348-6; 29 U.S.C. §722(c); 34 C.F.R. §361.57 ) (Imp: HRS §§ 347-4, 348-3, 348-6; 29 U.S.C. §722(c); 34 C.F.R. §361.57 )