32 Miss. Code. R. 10-4-4.3

Current through December 10, 2024

Section 32-10-4-4.3 - IMPARTIAL DUE PROCESS HEARING

The impartial due process hearing is to be conducted and completed by an Impartial Hearing Officer within 60 days from the day the individual makes the original request for a review of a determination unless an informal resolution or a mediation agreement is achieved prior to the 60th day or both parties agree to a specific extension of time. This includes any days utilized as part of the informal review. ³⁸ All Impartial Hearing Officers are selected at random from a list of qualified impartial hearing officers jointly identified by the agency and the SRC³⁹. ⁴⁰

1. The individual, or if appropriate, a parent, guardian, or other representative shall be furnished an opportunity to present additional witnesses, evidence and information to the Impartial Hearing Officer.

The individual or his/her representative will also be given the opportunity to be represented by counsel or other appropriate advocate and examine all witnesses and other relevant sources of information and evidence. ⁴¹

2. The Impartial Hearing Officer must: ⁴²

* Make a decision based on the provisions of the approved VR portion of the Unified or Combined State Plan, the Act,⁴³ federal VR regulations, and state regulations and policies that are consistent with federal requirements; and

* Provide to the individual or, if appropriate, the individual's representative and to the agency a full written report of the findings and grounds for the decision within 30 days of the completion of the hearing. CAP, if involved in the hearing, should also receive a copy of the report.

3. The Requestor Shall:

* Receive timely notice of all events and/or proceedings related to the hearing; and

* Be heard, present evidence, call witnesses, cross-examine witnesses, be represented by counsel at his/her own expense (if he/she so chooses), and receive a written decision based on the evidence. ⁴⁴

4. Once the Impartial Hearing Officer has established the date, place, and time of the hearing, written notice (in language understandable to the requestor) shall be provided to the requestor via Certified Mail, return receipt requested, and to the Executive Director of MDRS.

Such notice shall contain:

* The name and address of the requestor and the requestor's file number;

* The name and address (including the District/Region) of the requestor's counselor;

* A brief statement of the matter(s) in conflict;

* A brief statement of the date, place, and time of the hearing, and

* The right of the individual or, as appropriate, his/her representative, to submit information that supports his/her position.

5. Issues in dispute may be resolved informally at any point in the process by stipulation, agreed settlement, consent order, default, or by another method agreed upon by the parties. An informal disposition shall be reduced to writing, signed by the parties, and made a part of the record of the proceedings. ⁴⁵

The record of a formal review shall include:

* The notice of a formal review;

* A copy of the request for the review, specifying the matter(s) in dispute;

* The informal review decision(s), if any;

* All evidence received during the review (informal and formal);

* A statement of all matters officially noticed;

* All questions, offers of proof, objections, and rulings thereon;

* A transcript of the hearing proceedings; and,

* The written decision of the Impartial Hearing Officer.

6. The hearing shall be recorded by a certified court reporter. A copy of the transcript may be requested by either party (in addition to the official copy) with the expense of transcribing and reproducing the copy being charged to that party. The record of the proceedings shall be confidential and maintained by OVR/OVRB.

Rules of Evidence

1. The technical rules of evidence shall be relaxed to the degree specified by the Impartial Hearing Officer.

2. All witnesses shall be sworn in by the court reporter, testify under oath, and be subject to cross-examination.

3. The Impartial Hearing Officer shall have the authority and discretion to admit into the record any and all evidence that has a reasonable degree of relevance to the dispute. The Impartial Hearing Officer shall have broad discretion to exclude evidence that is irrelevant, immaterial, or unduly cumulative to the matter(s) in dispute. Questions of admissibility should be decided in favor of admissibility even if only remotely relevant.

4. The Impartial Hearing Officer shall cause documents that are offered for admission into evidence to be marked and attached to the record of the proceedings.

Order of Proceedings

1. The requestor shall be the first to present his or her principle case. The case may be presented by direct examination of witnesses with an opportunity for cross-examination, redirect examination, and introduction of documentary evidence.

2. At the close of the requestor's presentation, the agency shall present its principle case. The agency shall be afforded the same opportunity for direct, cross and redirect examination of witnesses, and introduction of documentary evidence.

Impartial Hearing Officer is and individual who: ⁴⁶

* Is not an employee of a public agency (other than an administrative law judge, hearing examiner, or employee of an institution of higher education);

* Is not a member of the OVR/OVRB State Rehabilitation Council;

* Has not been involved previously in the vocational rehabilitation of the applicant or eligible individual;

* Has knowledge of the delivery of vocational rehabilitation services, the State plan, and the Federal and State regulations governing the provision of services;

* Has received training with respect to the performance of official duties; and

* Has no personal, professional, or financial interest that would be in conflict with the objectivity of the individual.

An individual is not considered to be an employee of a public agency for the purposes of this definition solely because the individual is paid by the agency to serve as a hearing officer.

32 Miss. Code. R. 10-4-4.3

Adopted 8/1/2022