14- 118 C.M.R. ch. 2, § I

Current through 2024-52, December 25, 2024

Section 118-2-I - CLIENT APPEALS

1. The Driver Education and Evaluation Programs Appeals Board, or any one member of the Board, has authority to hear and decide any of the following issues:

a. The client may appeal a failure by the Director to certify completion of treatment requirements by means other than completion of the applicable Driver Education and Evaluation Program.

b. The client may appeal a failure by the Director to certify completion of treatment requirements by means of completion of the applicable Driver Education and Evaluation Program, provided, however, that the client has obtained a second opinion from a certified Community-based Service Provider of the need for treatment.

c. The client may appeal an evaluation decision by the Director or by a certified Community-based Service Provider of evaluation services, referring a client to treatment, provided, however, that the client has obtained a second opinion from a certified Community-based Service Provider of evaluation services.

2. The client shall request a hearing within thirty (30) days of receipt of notice of the action being appealed. The request shall be in writing, delivered to DEEP, shall refer to the action being appealed and shall state the reasons why the client believes the action was erroneous. It will be presumed that the client received notice of the action within three (3) days of mailing unless the client can prove otherwise.

3. Upon receipt of a request for a hearing, with regard to issues which the Board has authority to hear, DEEP will schedule a hearing promptly. Notice of the date and place of the hearing will be sent to the client, his authorized representative if one is known to the Director, the members of the Board, the Director's representative involved in the action appealed, and the Community-based Service Provider(s) involved in the action appealed, at least ten (10) days in advance of the hearing.

4. At the hearing, the client or his authorized representative shall have the opportunity:

a. to examine all documents and records that formed the basis of the action appealed, either at the hearing or, upon his timely request, at a reasonable time prior to the hearing;

b. at his/her option, to present his/her case for himself/herself or with the aid of others including legal counsel;

c. to bring witnesses;

d. to establish all pertinent facts and circumstances;

e. to advance any arguments without undue interference;

f. to question or refute any testimony or evidence including the opportunity to confront and cross-examine adverse witnesses.

5. All hearings will:

a. be conducted privately and open only to the client, others whom the client wishes to be present, members of the Director's staff, witnesses chosen by the Director and Community-based Service Provider(s) involved in the action appealed;

b. be conducted informally without technical rules of evidence, although the requirements of due process will be met and all witnesses will be sworn;

c. be opened by the member(s) of the Board present who will make a statement of points in issue, give all participants an opportunity to present relevant oral or written testimony or documentary evidence and to offer rebuttal, question witnesses, examine all evidence presented at the hearing, and establish competency of witnesses offering subjective or technical opinions;

d. be recorded by electronic tape recording which will be filed by tape in the DEEP office to be available to the staff, the Board and the client or his authorized representative, together with all documentary evidence submitted as exhibits at the hearing; and

e. be concluded when the member(s) of the Board present are satisfied that all relevant evidence has been introduced.

6. The hearing decision will:

a. be based exclusively on evidence or testimony presented at the hearing;

b. be issued promptly;

c. include a statement of the issue, list of participants, findings of fact, references to pertinent provisions in law and regulations governing the decision and a reasoned basis for the decision;

d. result in;

(1) affirmation of the action appealed;

(2) reversal of the action appealed;

(3) an order requiring further evaluation of the client;

(4) a remand to the Director for consideration of evidence of relevant new or changed circumstances offered by the client;

(5) finding of completion of treatment; and/or

(6) such other alternative recommendation as the Board sees fit.

e. be provided to the Director, the client, his/her authorized representative if any, the Community-based Service Provider(s) participating in the hearing and all members of the Board;

f. be final agency action, except in the case of a remand to the Director, in which case the later hearing decision, made after the Director reports back to the Board member(s) conducting the hearing the results of the Director's consideration of additional evidence upon remand, will be final agency action; and

g. include a notice to the client that he may seek judicial review of final agency action by filing a petition in Superior Court within thirty (30) days of receipt of notice of final agency action.

14- 118 C.M.R. ch. 2, § I