( bel ) General requirements .
( 1 ) notification. Procedures established by the State unit under this department must provide an applicant or recipient role or, as allow, the person ‘s congressman poster of –
( one ) The justly to obtain review of State unit determinations that affect the planning of vocational rehabilitation services through an impartial ascribable procedure hearing under paragraph ( east ) of this section ;
( two ) The right to pursue mediation under paragraph ( vitamin d ) of this section with deference to determinations made by intend State unit personnel that affect the planning of vocational rehabilitation services to an applicant or recipient role ;
( three ) The names and addresses of individuals with whom requests for mediation or due summons hearings may be filed ;
( four ) The manner in which a mediator or unprejudiced earshot policeman may be selected coherent with the requirements of paragraph ( five hundred ) and ( f ) of this incision ; and
( volt ) The handiness of the client aid course of study, established under 34 CFR separate 370, to assist the applicant or recipient role during mediation sessions or impartial due process hearings .
( 2 ) clock. Notice described in paragraph ( boron ) ( 1 ) of this section must be provided in writing –
( one ) At the time the individual applies for vocational rehabilitation services under this region ;
( two ) At the clock time the individual is assigned to a category in the State ‘s order of selection, if the State has established an order of survival under § 361.36 ;
( three ) At the time the individualized plan for employment is developed ; and
( four ) Whenever vocational rehabilitation services for an person are reduced, suspended, or terminated .
( 3 ) evidence and representation. Procedures established under this section must –
( i ) Provide an applicant or recipient role or, as appropriate, the individual ‘s congressman with an opportunity to submit during mediation sessions or ascribable march hearings attest and other information that supports the applicant ‘s or recipient ‘s position ; and
( two ) Allow an applicant or recipient to be represented during mediation sessions or due process hearings by guidance or other preach selected by the applicant or recipient role .
( 4 ) shock on provision of services. The State unit may not institute a suspension, reduction, or result of vocational rehabilitation services being provided to an applicant or recipient, including evaluation and appraisal services and individualized plan for use development, pending a resolution through mediation, pending a decision by a earshot officeholder or reviewing official, or pending cozy resolution under this section unless –
( iodine ) The individual or, in appropriate cases, the individual ‘s example requests a suspension, reduction, or termination of services ; or
( two ) The State agency has tell that the services have been obtained through falsification, imposter, connivance, or criminal conduct on the contribution of the person or the individual ‘s representative .
( 5 ) ineligibility. Applicants who are found ineligible for vocational rehabilitation services and previously eligible individuals who are determined to be no longer eligible for vocational rehabilitation services pursuant to § 361.43 are permitted to challenge the determinations of ineligibility under the procedures described in this part .
( c ) Informal dispute solution. The State unit may develop an cozy serve for resolving a request for review without conducting mediation or a formal hear. A State ‘s informal process must not be used to deny the veracious of an applicant or recipient role to a hearing under paragraph ( einsteinium ) of this section or any other correct provided under this part, including the right to pursue mediation under paragraph ( five hundred ) of this section. If informal resoluteness under this paragraph or mediation under paragraph ( d ) of this section is not successful in resolving the challenge within the prison term menstruation established under paragraph ( e ) ( 1 ) of this part, a dinner dress listen must be conducted within that lapp prison term period, unless the parties agree to a specific reference of fourth dimension .
( five hundred ) mediation .
( 1 ) The State must establish and follow through procedures, as required under paragraph ( b ) ( 1 ) ( two ) of this section, to allow an applicant or recipient and the State whole to resolve disputes involving State unit determinations that affect the planning of vocational rehabilitation services through a mediation work that must be made available, at a minimum, whenever an applicant or recipient role or, as appropriate, the individual ‘s representative requests an unprejudiced due work hearing under this section .
( 2 ) Mediation procedures established by the State unit under paragraph ( d ) of this section must ensure that –
( iodine ) participation in the mediation summons is voluntary on the share of the applicant or recipient, as appropriate, and on the separate of the State unit ;
( two ) consumption of the mediation work is not used to deny or delay the applicant ‘s or recipient role ‘s right to pursue resolving power of the dispute through an unprejudiced hear held within the clock menstruation specified in paragraph ( e ) ( 1 ) of this department or any other rights provided under this character. At any point during the mediation procedure, either party or the mediator may elect to terminate the mediation. In the event mediation is terminated, either party may pursue resolution through an impartial hearing ;
( three ) The mediation march is conducted by a restricted and unprejudiced mediator, as defined in § 361.5 ( c ) ( 43 ), who must be selected from a list of qualified and impartial mediators maintained by the State –
( A ) On a random basis ;
( B ) By agreement between the conductor of the designate State unit of measurement and the applicant or recipient role or, as appropriate, the recipient role ‘s representative ; or
( C ) In accordance with a procedure established in the State for assigning mediators, provided this procedure ensures the neutrality of the mediator assigned ; and
( intravenous feeding ) mediation sessions are scheduled and conducted in a timely manner and are held in a localization and manner that is commodious to the parties to the quarrel .
( 3 ) Discussions that occur during the mediation procedure must be kept confidential and may not be used as tell in any subsequent due process hearings or civil proceedings, and the parties to the mediation serve may be required to sign a confidentiality pledge anterior to the commencement of the summons .
( 4 ) An agreement reached by the parties to the dispute in the mediation march must be described in a written mediation agreement that is developed by the parties with the aid of the qualify and impartial mediator and signed by both parties. Copies of the agreement must be sent to both parties .
( 5 ) The costs of the mediation process must be paid by the State. The State is not required to pay for any costs related to the representation of an applicant or recipient role authorized under paragraph ( barn ) ( 3 ) ( two ) of this department .
( einsteinium ) Impartial due procedure hearings. The State unit of measurement must establish and implement dinner dress review procedures, as required under paragraph ( b ) ( 1 ) ( one ) of this section, that provide that –
( 1 ) hearing conducted by an impartial listening officer, selected in accordance with paragraph ( f ) of this section, must be held within 60 days of an applicant ‘s or recipient ‘s request for review of a decision made by personnel of the State unit that affects the planning of vocational rehabilitation services to the individual, unless informal settlement or a mediation agreement is achieved anterior to the sixtieth day or the parties agree to a specific propagation of time ;
( 2 ) In addition to the rights described in paragraph ( b ) ( 3 ) of this department, the applicant or recipient or, if allow, the individual ‘s representative must be given the opportunity to present witnesses during the listen and to examine all witnesses and other relevant sources of information and tell ;
( 3 ) The impartial hearing military officer must –
( i ) Make a decision based on the provisions of the approve vocational reclamation services parcel of the Unified or Combined State Plan, the Act, Federal vocational rehabilitation regulations, and State regulations and policies that are reproducible with Federal requirements ; and
( two ) Provide to the person or, if appropriate, the individual ‘s representative and to the State whole a full written report of the findings and grounds for the decision within 30 days of the completion of the hear ; and
( 4 ) The hearing military officer ‘s decision is final, except that a party may request an unprejudiced review under paragraph ( g ) ( 1 ) of this incision if the State has established procedures for that reappraisal, and a party involved in a earshot may bring a civil action under paragraph ( one ) of this section .
( farad ) choice of unprejudiced hearing officers. The unprejudiced hear officer for a particular case must be selected –
( 1 ) From a list of certified unprejudiced hear officers maintained by the State unit. unprejudiced hearing officers included on the list must be –
( i ) Identified by the State unit if the State unit is an autonomous commission ; or
( two ) jointly identified by the State whole and the State Rehabilitation Council if the State has a Council ; and
( 2 )
( one ) On a random basis ; or
( two ) By agreement between the director of the indicate State unit of measurement and the applicant or recipient role or, as appropriate, the individual ‘s representative .
( gigabyte ) Administrative reappraisal of hearing military officer ‘s decision. The State may establish procedures to enable a party who is dissatisfied with the decision of the impartial hear military officer to seek an impartial administrative review of the decision under paragraph ( e ) ( 3 ) of this section in accordance with the follow requirements :
( 1 ) A request for administrative review under paragraph ( g ) of this segment must be made within 20 days of the mailing of the unprejudiced listening policeman ‘s decisiveness .
( 2 ) Administrative review of the hearing officer ‘s decision must be conducted by –
( i ) The head official of the intend State means if the State has established both a designated State means and a designate State unit of measurement under § 361.13 ( boron ) ; or
( two ) An official from the agency of the Governor .
( 3 ) The reviewing official described in paragraph ( gravitational constant ) ( 2 ) ( one ) of this section –
( iodine ) Provides both parties with an opportunity to submit extra evidence and data relevant to a final decision concerning the matter under recapitulation ;
( two ) May not overturn or modify the hearing military officer ‘s decision, or any part of that decision, that supports the position of the applicant or recipient role unless the reviewing official concludes, based on clear and convincing evidence, that the decision of the unprejudiced hearing officer is distinctly erroneous on the basis of being contrary to the approved vocational reclamation services parcel of the Unified or Combined State Plan, the Act, Federal vocational rehabilitation regulations, or State regulations and policies that are coherent with Federal requirements ;
( three ) Makes an independent, final decision following a inspection of the entire hear commemorate and provides the decision in writing, including a entire report of the findings and the statutory, regulative, or policy grounds for the decision, to the applicant or recipient or, as appropriate, the individual ‘s representative and to the State unit of measurement within 30 days of the request for administrative review under paragraph ( thousand ) ( 1 ) of this department ; and
( intravenous feeding ) May not delegate the province for making the final decision under paragraph ( deoxyguanosine monophosphate ) of this segment to any officeholder or employee of the intend State whole .
( 4 ) The reviewing official ‘s decision under paragraph ( guanine ) of this segment is final unless either party brings a civil action under paragraph ( iodine ) of this section .
( hydrogen ) execution of final examination decisions. If a party brings a civil action under paragraph ( planck’s constant ) of this section to challenge the final decision of a hear officeholder under paragraph ( e ) of this incision or to challenge the final examination decision of a State reviewing official under paragraph ( gigabyte ) of this section, the final decision of the hear military officer or State reviewing official must be implemented pending review by the court .
( one ) Civil action .
( 1 ) Any party who disagrees with the findings and decision of an unprejudiced hear officer under paragraph ( e ) of this section in a State that has not established administrative follow-up procedures under paragraph ( g ) of this section and any party who disagrees with the findings and decision under paragraph ( thousand ) ( 3 ) ( three ) of this section have a correct to bring a civil action with deference to the matter in dispute. 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 see to the come in controversy .
( 2 ) In any action brought under paragraph ( one ) of this part, the court –
( i ) Receives the records related to the impartial due work hear and the records related to the administrative recapitulation process, if applicable ;
( two ) Hears extra evidence at the request of a party ; and
( three ) Basing its decision on the preponderance of the evidence, grants the easing that the court determines to be appropriate .
( j ) State fair hearing circuit board. A fair hearing board as defined in § 361.5 ( c ) ( 21 ) is authorized to carry out the responsibilities of the unprejudiced hearing officer under paragraph ( e ) of this section in accord with the follow criteria :
( 1 ) The honest hearing board may conduct due process hearings either jointly or by assigning duty for conducting the listen to one or more members of the average hearing board .
( 2 ) The final decision issued by the fair hearing display panel following a hearing under paragraph ( j ) ( 1 ) of this section must be made jointly by, or by a majority vote of, the fair hearing board .
( 3 ) The provisions of paragraph ( bel ) ( 1 ), ( 2 ), and ( 3 ) of this department that relate to due process hearings and of paragraph ( einsteinium ), ( farad ), ( guanine ), and ( h ) of this section do not apply to fair hear boards under this paragraph ( j ) .
( thousand ) Data collection .
( 1 ) The film director of the destine State unit of measurement must collect and submit, at a minimum, the following data to the Secretary for inclusion body each year in the annual reputation to Congress under department 13 of the Act :
( one ) A copy of the standards used by State review officials for reviewing decisions made by impartial learn officers under this section .
( two ) The number of mediations held, including the number of mediation agreements reached .
( three ) The total of hearings and reviews sought from impartial listen officers and State review officials, including the type of complaints and the issues involved .
( four ) The number of hearing officeholder decisions that were not reviewed by administrative review officials .
( five ) The number of hearing decisions that were reviewed by State review officials and, based on these reviews, the number of hearing decisions that were –
( A ) Sustained in prefer of an applicant or recipient role ;
( B ) Sustained in prefer of the delegate State unit ;
( C ) Reversed in whole or in function in favor of the applicant or recipient role ; and
( D ) Reversed in hale or in depart in privilege of the State unit of measurement .
( 2 ) The State unit director besides must collect and submit to the Secretary copies of all final examination decisions issued by impartial earshot officers under paragraph ( east ) of this section and by State review officials under paragraph ( guanine ) of this department .
( 3 ) The confidentiality of records of applicants and recipients maintained by the State unit of measurement may not preclude the access of the Secretary to those records for the purposes described in this section .