SUBCHAPTER 89B ‑ PROCEDURE
SECTION .0100 ‑ RULE‑MAKING PROCEDURES
10A NCAC 89B .0101 PURPOSE AND SCOPE
(a) The purpose of Rules .0101 through .0108 of this
Section is to set forth the Division of Vocational Rehabilitation Services'
procedures for rule‑making hearings and declaratory rulings.
(b) The procedures in these Rules shall be followed by
persons wishing to submit comments, written or oral, at rule‑making
hearings, by persons requesting additional information regarding proposed or
adopted rules, and by persons requesting declaratory rulings.
(c) As used in these rules, the term "rule" has
the meaning specified in G.S. 150B‑2(8a) and includes the amendment or
repeal of a prior rule as well as the adoption of a new rule.
History Note: Authority G.S. 143‑545; 143‑546;
143B‑10(j)(2); 150B‑11;
Eff. February 1, 1976;
Amended Eff. April 1, 1988.
10A NCAC 89B .0102 PETITIONS
(a) Any person wishing to submit a petition requesting the
adoption, amendment, or repeal of a rule by the Division Director shall address
the petition to: A.P.A. Coordinator, Division of Vocational Rehabilitation
Services, 2801 Mail Service Center, Raleigh, North Carolina 27699-2801.
(b) The petition shall contain the following information:
(1) either a draft of the proposed rule or a
summary of its contents and the statutory authority for the Division Director
to promulgate the rule;
(2) reason for the proposal;
(3) effect of existing rules;
(4) any data supporting the proposal;
(5) the effect of the proposed rule on existing
practices in the area involved, including cost factors;
(6) names and addresses, if known, of those
most likely to be affected by the proposed rule; and
(7) name and address of the petitioner.
(c) The Division Director shall determine, based on a study
of the facts stated in the petition, whether the public interest will be served
by granting the petition. The Division Director shall consider all the
contents of the petition, plus any additional information deemed relevant.
(d) The Division Director shall render a final decision on
the petition within 30 days of submission of the petition. If the decision is
to deny the petition, the petitioner shall be notified in writing and provided
the reasons for the denial. Denial of the petition shall be considered a final
agency decision as specified in G.S. 150B-16. If the decision is to approve
the petition, rule‑making proceedings shall be initiated in accordance
with the rules in this Section.
History Note: Authority G.S. 143‑545; 143‑546;
143B‑10(j)(2); 150B‑11; 150B‑16;
Eff. February 1, 1976;
Amended Eff. April 1, 1988; October 20, 1979.
10A NCAC 89B .0103 NOTICE
(a) When a rule‑making hearing is scheduled, in
response to a petition or otherwise, the Division shall give notice of a public
hearing. The notice shall meet the requirements of G.S. 150B‑12.
(b) Persons desiring information in addition to that
provided in a particular rule‑making notice shall contact the Division's
A.P.A. Coordinator or other person specified in the hearing notice according to
the directions in the notice.
History Note: Authority G.S. 143‑545; 143‑546;
143B‑10(j)(2); 150B‑11; 150B‑12;
Eff. February 1, 1976;
Amended Eff. April 1, 1988.
10A NCAC 89B .0104 HEARINGS
(a) Oral Presentations. Oral presentations shall not
exceed ten minutes unless, upon request either before or at the hearing, the
hearing officer grants an extension of time for good cause.
(b) Written Submissions.
(1) Any person may file a written submission
containing data, comments, or arguments within the 30‑day period that the
hearing record is open for written comments. The deadline for written
submissions shall be stated in the hearing notice.
(2) The written submission shall clearly state
the proposed rule to which the comments are addressed and shall also include
the name and address of the person submitting it. Written submissions shall be
sent to the person and address specified in the hearing notice.
(c) Management of Hearing. The hearing officer shall have
complete control of the hearing, including:
(1) the responsibility of having a record made
of the hearing,
(2) extension of any time allotments,
(3) recognition of speakers,
(4) elimination of repetitious presentations,
and
(5) general management of the hearing.
(d) Fair Opportunity to Present Views. The hearing officer
shall insure that each person participating in the hearing is given a fair
opportunity to present views, data, and comments.
History Note: Authority G.S. 143‑545; 143‑546;
143B‑10(j)(2); 150B‑11; 150B‑12;
Eff. February 1, 1976;
Amended Eff. April 1, 1990; April 1, 1988; October 20, 1979.
10A NCAC 89B .0105 JUSTIFICATION OF RULE‑MAKING
DECISION
(a) Any interested person, either prior to adoption of a
rule or within 30 days thereafter, who desires a concise written statement of
the principal reasons for and against the adoption of a rule by the Division
Director and the factors that led to overruling the considerations urged
against its adoption, may submit a request to:
A.P.A. Coordinator
Division of
Vocational Rehabilitation Services
805 Ruggles Drive
2901 Mail Service Center
Raleigh, North
Carolina 27699-2801
(b) For purposes of this Rule, an "interested
person" shall be any person, group, or organization whose rights, duties,
or privileges might be affected by the adoption of the rule.
(c) The request shall be made in writing, shall contain a
statement showing that the individual submitting the request is an
"interested person," and shall identify the rule or proposed rule
involved.
(d) The Division Director shall issue a written statement
of reasons for or against the adoption or rejection of the rule within 30 days
after receipt of the request.
History Note: Authority G.S. 143‑545; 143‑546;
143B‑10(j)(2); 150B‑11; 150B‑12;
Eff. February 1, 1976;
Amended Eff. April 1, 1990; April 1, 1988; October 20, 1979.
10A NCAC 89B .0106 RECORD OF RULE‑MAKING HEARINGS
A record of all rule‑making hearings shall be
maintained by the office of the Division's A.P.A. Coordinator. The record
shall be available for public inspection during regular office hours and shall include:
(1) any petitions related to the hearing,
(2) the hearing notice,
(3) all written memoranda and information submitted,
(4) a tape recording or transcript of the oral hearing,
(5) any statement of reasons issued to an interested
person according to Rule .0105 of this Section, and
(6) a final draft of the rule.
History Note: Authority G.S. 143‑545; 143‑546;
143B‑10(j)(2); 150B‑11;
Eff. February 1, 1976;
Amended Eff. April 1, 1990; April 1, 1988.
10A NCAC 89B .0107 FEES
Except when a statute provides otherwise, the Division may
charge a fee to cover the costs of meeting requests for information related to
the rule‑making hearing.
History Note: Authority G.S. 12‑3.1(c); 143‑545;
143‑546; 143B‑10(j)(2); 150B‑11;
Eff. February 1, 1976;
Amended Eff. April 1, 1988; October 20, 1979.
10A NCAC 89B .0108 DECLARATORY RULINGS
(a) All requests for declaratory rulings shall be by
written petition and shall be submitted to:
A.P.A. Coordinator
Division of
Vocational Rehabilitation Services
805 Ruggles Drive
2801 Mail Service Center
Raleigh, North
Carolina 27699-2801
(b) Every request for a declaratory ruling shall include
the following information:
(1) the name, address, and telephone number of
the petitioner;
(2) the statute, rule, or order to which the
petition relates;
(3) a concise statement of the reasons why the
petitioner is aggrieved by the rule, statute, or order, or its potential
application to the petitioner; and
(4) the consequences of a failure to issue a
declaratory ruling.
(c) Whenever the Director believes for good cause that the
issuance of a declaratory ruling is undesirable, the Director may decline to
issue one. In such cases, the Director shall notify the petitioner in writing
of the decision stating the reasons for the denial of a declaratory ruling.
The Director may decline to issue a declaratory ruling in the following
specific circumstances:
(1) if the request for a declaratory ruling
addresses a situation or facts similar to those specifically considered at the
rule‑making hearing and is found in the rule‑making record;
(2) if the petitioner cannot show that the
circumstances are so changed since adoption of the rule that such a ruling
would be warranted; or
(3) if the circumstances stated in the request
indicate that there is a factual dispute and a contested case hearing would be
more appropriate.
(d) When issuing a declaratory ruling is deemed
appropriate, the Director shall issue the ruling within 60 days of receipt of
the petition.
(e) A declaratory ruling procedure may consist of written
submissions, oral hearings, or such other procedures as may be deemed
appropriate by the Director in a particular case.
(f) The Director may notify persons who might be affected
by the ruling that they may submit written comments or make oral presentations
at a scheduled hearing.
(g) A record of all declaratory ruling proceedings shall be
maintained by the Division's A.P.A. Coordinator and shall be available for
inspection during regular business hours. This record shall contain:
(1) the original request,
(2) all written memoranda and information
submitted,
(3) a tape recording or transcript of any oral
hearing, and
(4) a statement of the ruling or the reasons
for refusing to issue a ruling.
History Note: Authority G.S. 143‑545; 143‑546;
143B‑10(j)(2); 150B‑11; 150B‑17;
Eff. February 1, 1976;
Amended Eff. April 1, 1990; April 1, 1988.
SECTION .0200 ‑ CONTESTED CASES: ADMINISTRATIVE REVIEWS:
APPEALS HEARINGS
10A NCAC 89B .0201 APPLICABILITY OF RULES
Except for administrative reviews, mediation, and appeals to
be conducted according to the provisions of Rules .0202 through .0228 of this
Section, appeals concerning the administration of the rules in this Chapter
shall be filed and conducted in accordance with G.S. 150B and 10A NCAC 01.
History Note: Authority G.S. 143-546.1; 150B-1; 34
C.F.R. 361.57; P.L. 105-220, s.102 (c);
Eff. February 1, 1976;
Amended Eff. July 1, 2000; September 1, 1989.
10A NCAC 89B .0202 WRITTEN INFORMATION FOR APPLICANTS AND
CLIENTS
(a) All applicants for and clients receiving vocational
rehabilitation services shall be informed of the opportunities for an
administrative review, mediation and an appeal available under Section 102(c)
of the Rehabilitation Act and Rules .0202 through .0228 of this Section.
(b) Written information shall be provided to all applicants
and clients informing them:
(1) of their right to an appeals hearing when
they are dissatisfied with any determinations made by the division concerning
the furnishing or denial of services;
(2) that they have the option of seeking
resolution of the issue through an administrative review prior to an appeals
hearing;
(3) that mediation may be available to resolve
their problems if the Division agrees to it;
(4) that the rehabilitation counselor,
rehabilitation coordinator or other designated staff of the division will
assist them in preparation of the written request for an administrative review,
mediation, or appeal;
(5) of the name and address of the appropriate
regional director to whom the request shall be submitted; and
(6) that they may receive assistance with the
resolution of their problems through the Client Assistance Program.
(c) The notifications required in Paragraph (b) of this
Rule shall be provided in writing:
(1) at the time an individual applies for
services;
(2) at the time the individualized plan for
employment for the individual is developed; and
(3) upon reduction, suspension, or cessation of
vocational rehabilitation services for the individual.
History Note: Authority G.S. 143-546.1; 150B-1; 34
C.F.R 361.57; P.L. 105-220, s.102 (c);
Eff. February 1, 1976;
Amended Eff. July 1, 2000; September 1, 1989; October 20, 1979.
10A NCAC 89B .0203 REQUEST FOR ADMINISTRATIVE REVIEW AND
APPEALS HEARING
(a) When any applicant for or client receiving vocational
rehabilitation services wishes to request an administrative review, mediation,
and an appeals hearing or only an appeals hearing, the individual shall submit
a written request to the appropriate regional director of the Division.
(b) The request shall indicate if the individual is
requesting:
(1) an administrative review, mediation, and an
appeals hearing to be scheduled concurrently;
(2) an administrative review and an appeals
hearing to be scheduled concurrently; or
(3) only an appeals hearing.
(c) The request shall contain the following information:
(1) the name, address and telephone number of
the applicant or client; and
(2) a concise statement of the determination(s)
made by the rehabilitation staff for which an administrative review, mediation,
and appeals hearing or only the appeals hearing is being requested and the
manner in which the person's rights, duties or privileges have been affected by
the determination(s).
(d) The Division shall not suspend, reduce, or terminate
services being provided to a client under a written individualized plan for
employment (IPE) pending final resolution of the issue through mediation, an
appeals hearing, or an administrative review unless the individual or the
individual’s representative so requests, or the Division has evidence that the
services have been obtained through misrepresentation, fraud, collusion, or
criminal conduct on the part of the individual.
History Note: Authority G.S. 143-546.1; 150B-1; 34
C.F.R. 361.57; P.L. 105-220, s. 102(c);
Eff. February 1, 1976;
Amended Eff. July 1, 2000; October 1, 1994; September 1, 1989; October 20, 1979.
10A NCAC 89B .0204 DIVISION ACTIONS IN RESPONSE TO REQUEST
(a) Upon receipt of a request for an appeals hearing, the
regional director shall immediately forward the original request to the
Division's Chief of Operations who will arrange for the provision of
information about the possibility of mediation to the individual and the
appointment of a hearing officer to conduct the appeals hearing.
(b) If the individual has requested an administrative
review in addition to an appeals hearing, the regional director shall:
(1) make a decision to conduct the
administrative review himself or herself or appoint a designee to conduct the
administrative review who:
(A) has had no previous involvement in the issues
currently in controversy;
(B) can conduct the administrative review in an unbiased
way; and
(C) has a broad working knowledge of the Division's
rules, federal regulations governing the program, and the State Plan for
Vocational Rehabilitation Services or Independent Living Services (as
appropriate); and
(2) proceed with, or direct the designee to
proceed with, an administrative review according to the provisions of Rules
.0205, .0208, and .0209 of this Section.
(c) The regional director shall send the applicant or
client written acknowledgment of receipt of the request and inform the
individual that additional information will be sent regarding the possibility
of mediation and the administrative review and appeals hearing or only the
appeals hearing.
(d) The regional director shall provide the Chief of Operations
and the Client Assistance Program (if the Client Assistance Program is
assisting the individual with the case) with a copy of the request and the
response to the request.
History Note: Authority G.S. 143-546.1; 150B-1; 34
C.F.R. 361.57; P.L. 105-220, s. 102(c);
Eff. February 1, 1976;
Amended Eff. July 1, 2000; April 1, 1997; September 1, 1989.
10A NCAC 89B .0205 SCHEDULING AND NOTICE OF ADMINISTRATIVE
REVIEW
(a) If an administrative review is to be conducted, the
regional director or designee shall:
(1) set a date, time and place for the
administrative review;
(2) send written notification by certified mail
to the applicant or client and the individual's parent, guardian or
representative, as appropriate, of the date, time and place for the
administrative review at least five days prior to the administrative review;
(3) advise the applicant or client in the
written notice that a hearing officer will be appointed by the Division to
conduct a hearing if the matter is not resolved in the administrative review
and that the applicant or client will also receive additional information
regarding mediation if mediation has been requested and a written notice from
the hearing officer regarding the formal appeals hearing which will be held
after the administrative review and mediation; and
(4) notify the Director of the Client
Assistance Program (CAP) and other individuals to be involved in the
administrative review of the request and the date, time and place for the
administrative review. This notification may be by phone or in writing.
(b) Prior to the administrative review, the regional
director or designee shall review all previous decisions and casework related
to the applicant or client and seek whatever consultation, explanation,
documentation, or other information that is deemed necessary, utilizing the
Division's CAP Director as appropriate.
History Note: Authority G.S. 143-546.1; 150B-1; 34
C.F.R. 361.57; P.L. 105-220, s. 102(c);
Eff. February 1, 1976;
Amended Eff. July 1, 2000; April 1, 1997; September 1, 1989.
10A NCAC 89B .0206 APPOINTMENT OF HEARING OFFICER AND
MEDIATOR
Upon receipt of the applicant's or client's request for
mediation and an appeals hearing or only an appeals hearing from the regional
director, the Chief of Operations shall arrange for the Coordinator of Rules
and Policy Development to appoint a qualified mediator if mediation has been
requested and an impartial hearing officer. The hearing officer shall be
selected on a random basis without replacement from the pool of persons
qualified as defined in Section 7 (16) of the Rehabilitation Act of 1973, 29 U.S.C.
Section 720, et.seq., as amended.
History Note: Authority G. S. 143-546.1; 150B-1; 34
C.F.R. 361.57; P.L. 105-220, s. 102(c);
Eff. February 1, 1976;
Amended Eff. July 1, 2000; April 1, 1997; October 1, 1994; September 1, 1989; October 20, 1979.
10A NCAC 89B .0207 SCHEDULING AND NOTICE OF MEDIATION AND
APPEALS HEARING
(a) If mediation is agreed upon, the mediation shall take
place prior to the appeals hearing and shall be conducted according to Rule
.0210 of this Section.
(b) The hearing officer shall schedule the formal appeals
hearing, to be held within 45 days of receipt of the original request by the
applicant or client as described in Rule .0203 of this Section unless the
Coordinator of Rules and Policy Development has extended the time for the
hearing for a specific period of time upon written agreement of both parties or
the hearing officer grants an extension under Subparagraph (d)(4) of this Rule.
(c) The hearing officer shall provide the applicant or
client and the division written notice of the date, time and place of the
hearing and the issue(s) to be considered at least 10 days prior to the
hearing. A copy of the notice shall be sent to the Client Assistance Program
if CAP is involved in the case.
(d) The notice shall inform the applicant or client and the
division:
(1) of the procedures to be followed in the
hearing;
(2) of the particular sections of the statutes,
federal regulations, state rules, and state plan involved;
(3) of the rights of the applicant or client as
specified in 34 C.F.R. 361.57(b)(1) through (b)(4);
(4) that the hearing officer shall extend the
time for the hearing if the parties jointly agree to a specific extension of
time and submit a written statement to that effect to the hearing officer; and
(5) that the hearing may be cancelled if the
matter is resolved in an administrative review or through mediation.
(e) Notice shall be given personally or by certified mail.
If given by certified mail, it shall be deemed to have been given on the
delivery date appearing on the return receipt.
History Note: Authority G.S. 143‑546.1; 150B‑1;
34 C.F.R. 361.57; P.L. 105-220, s. 102(c );
Eff. February 1, 1976;
Amended Eff. July 1, 2000; September 1, 1989.
10A NCAC 89B .0208 ADMINISTRATIVE REVIEW
(a) Within 15 days of the original request for an
administrative review by the applicant or client, the regional director or
designee shall hold the administrative review with the applicant or client; the
individual's parent, guardian or representative, as appropriate; the CAP
Director, as appropriate; and other individuals deemed necessary by the
regional director or designee.
(b) Within five working days of the administrative review,
the regional director or designee shall make a decision and notify the
applicant or client and others using the following procedures:
(1) compile a written report of the
administrative review outlining the purposes of the administrative review, the
participants, the decision that was reached, and the rationale for the
decision;
(2) send the written report containing the
decision to the applicant or client by certified mail with return receipt
requested, with a copy being placed in the individual's official case record,
and copies being forwarded to the Chief of Operations and the CAP director if
CAP is involved; and
(3) provide instructions to the applicant or
client of steps that may be taken in response to the decision and the deadline
for the responses. A form indicating agreement with the decision and
requesting that the hearing be cancelled shall be included for the applicant's
or client's signature if the individual agrees with the decision.
(c) In situations where the issue currently in controversy
involves action taken by the central office of the Division, the Chief of
Operations or a designee of the Chief of Operations shall be responsible for
the duties related to the administrative review that are prescribed for the
regional director in these Rules.
History Note: Authority G.S. 143-546.1; 150B-1; 34
C.F.R. 361.57; P.L. 105-220, s. 102(c);
Eff. February 1, 1976;
Amended Eff. July 1, 2000; April 1, 1997; September 1, 1989.
10A NCAC 89B .0209 RESPONSE TO ADMINISTRATIVE REVIEW
DECISION
(a) If the applicant or client is satisfied with the
decision resulting from the administrative review, the individual shall sign
the form described in Rule .0208(b)(3) of this Section and submit it to the
regional director within five days of receipt of the decision. The regional
director shall inform the Chief of Operations of the request to cancel the
appeals hearing immediately and forward the form to the Chief of Operations who
shall submit it to the hearing officer.
(b) If the hearing officer does not receive a written
request from the applicant or client that the hearing be cancelled, the hearing
shall be conducted as scheduled unless negotiations produce a settlement that
is satisfactory to both parties prior to the hearing.
(c) If the hearing is cancelled, the hearing officer shall
send the applicant or client and the Division written notice of the
cancellation in the same manner as required for notice of the hearing in Rule
.0207(e) of this Section. A copy of the notice of cancellation shall be sent
to the Client Assistance Program if CAP is involved.
History Note: Authority G.S. 143-546.1; 150B-1; 34
C.F.R. 361.57; P.L. 105-220, s. 102(c);
Eff. February 1, 1976;
Amended Eff. July 1, 2000; April 1, 1997; September 1, 1989.
10A NCAC 89B .0210 MEDIATION
(a) If both parties agree to mediation, the mediation shall
take place prior to the appeals hearing.
(b) Mediation shall not be used to deny or delay an
individual's right to speedy complaint resolution. The mediation shall be
completed in a period that also allows for convening of an appeals hearing
after mediation within the 45-day time required under 34 C.F.R. 361.57(b)
unless both parties sign a written agreement for a specific extension of time.
(c) An individual to conduct the mediation shall be
selected from a list of qualified and impartial mediators that is maintained by
the Division. Individuals on the list of qualified mediators shall:
(1) be certified by the N. C. Dispute
Resolution Commission or approved by the Mediation Network of North Carolina;
and
(2) be knowledgeable regarding the laws,
Federal regulations and State rules governing the provision of vocational
rehabilitation and independent living services.
(d) Each mediation session shall be scheduled in a timely
manner and held in a location that is convenient to the parties involved.
(e) The Division shall bear the cost of the mediation.
(f) Parties involved shall sign a confidentiality pledge
prior to the process indicating that discussions which occur during the
mediation process shall be confidential and may not be used as evidence in any
subsequent appeals hearing or civil proceeding. No evidence that is otherwise
discoverable shall be inadmissable merely because it is presented or discussed
during mediation.
(g) If an agreement is reached during mediation, it shall
be in writing and signed by both parties.
History Note: Authority G.S. 143-546.1; 150B-1; 34
C.F.R. 361.57; P.L. 105-220, s. 102(c);
Eff. February 1, 1976;
Amended Eff. July 1, 2000; April 1, 1997; September 1, 1989.
10A NCAC 89B .0211 PROCEDURES GOVERNING HEARING
The appeals hearing shall be conducted according to the
provisions of 34 C.F.R. 361.57(b)(1) through (b)(3) and (b)(12) and according
to Rules .0212 through .0222 and Rule .0225 of this Section.
History Note: Authority G.S. 143-546.1; 150B-1; 34
C.F.R. 361.57; P.L. 105-220, s. 102(c);
Eff. February 1, 1976;
Amended Eff. July 1, 2000; September 1, 1989.
10A NCAC 89B .0212 VENUE
(a) The appeals hearing shall be held in the county of
residence in this State of the applicant or client.
(b) Any party desiring a change of venue shall file a
written motion for a change of venue with the hearing officer and serve copies
of that motion on all other parties at least seven days prior to the date for
which the hearing is set.
(c) The motion shall include the following information:
(1) the name, address, and telephone number of
the movant;
(2) identification by the case name and docket
number of the proceeding for which the change is sought;
(3) the time, date, and place for which the
hearing is scheduled;
(4) the county in which the party requests that
the hearing be held;
(5) a statement of the requested change,
including the names and addresses of any witnesses whose convenience represents
the basis for the request; and
(6) any other factors that should be considered
in ruling on the request.
(d) Any party may object to a motion for a change of venue
by filing a written notice of objection with the hearing officer within three
days after receipt of the motion and serving copies of the notice of objection
on all other parties. The notice of objection shall state clearly the grounds
for the objection.
(e) The hearing officer shall determine whether a change of
venue is appropriate and shall issue an order granting or denying the motion.
The order shall state the reasons for the decision. Copies of the order shall
be served on all parties.
History Note: Authority G.S. 143‑546; 143B‑10(j);
150B‑11; 34 C.F.R. 361.48;
Eff. February 1, 1976;
Amended Eff. September 1, 1989.
10A NCAC 89B .0213 DISCOVERY
(a) Parties in appeals hearings shall exchange information
voluntarily, seek access to public documents as provided by law, and exhaust
other informal means of obtaining discoverable material.
(b) Within 15 days after receipt of a request for discovery
or within such other time limit as the hearing officer may set, the party from
whom discovery is requested shall either:
(1) provide the requested material or access to
that material to the discovering party;
(2) provide a schedule for compliance with the
request for discovery; or
(3) file a written motion with the hearing
officer for relief from the request for discovery.
(c) Any dispute regarding discovery shall be referred to
the hearing officer for resolution. The hearing officer shall issue an order
resolving the dispute and containing the reasons for the ruling. Copies of the
order shall be served on all parties.
History Note: Authority G.S. 143‑546; 143B‑10(j);
150B‑11; 34 C.F.R. 361.48;
Eff. February 1, 1976;
Amended Eff. September 1, 1989.
10A NCAC 89B .0214 PRE-HEARING CONFERENCE
(a) Upon notice to all parties, the hearing officer may
instruct the parties to participate in a pre-hearing conference.
(b) The conference shall be informal in nature.
(c) The conference shall be noted in the notice of hearing
or in a subsequent notice if a conference is later determined to be necessary
by the hearing officer.
(d) The purpose of the conference will be to discuss:
(1) the possibility of simplification of
issues,
(2) stipulation of facts or findings,
(3) identification of areas where evidence will
be needed,
(4) Indication of discovery, and
(5) any other matters which will reduce costs
or save time or otherwise aid expeditious disposition of the case.
History Note: Authority G.S. 143-545A; 150B-1; 34
C.F.R. 361.48;
Eff. February 1, 1976;
Amended Eff. April 1, 1997; September 1, 1989.
10A NCAC 89B .0215 SIMPLIFICATION OF ISSUES
The parties to the hearing may agree in advance to
simplification of issues by:
(1) eliminating issues to be contested at the hearing,
(2) accepting the validity of certain proposed
evidence,
(3) accepting the findings in some other case with
relevance to the case at hand, or
(4) agreeing to such other matters as may expedite the
hearing.
History Note: Authority G.S. 143‑546; 143B‑10(j);
150B‑11; 34 C.F.R. 361.48;
Eff. February 1, 1976;
Amended Eff. September 1, 1989; October 20, 1979.
10A NCAC 89B .0216 EVIDENCE
(a) Evidence to be admitted in the hearing shall be as
specified in G.S. 150B‑29, G.S. 150B‑30, and G.S. 150B‑31.
(b) This adoption by reference is made under G.S. 150B‑14(c).
History Note: Authority G.S. 143‑546; 143B‑10(j);
150B‑11; 150B‑14(c); 150B‑29; 150B‑30; 150B‑31;
34 C.F.R. 361.48;
Eff. February 1, 1976;
Amended Eff. September 1, 1989.
10A NCAC 89B .0217 DISQUALIFICATION OF HEARING OFFICER
(a) If at any time the hearing officer believes he or she
cannot conduct the appeals hearing in a fair and impartial manner, the hearing
officer shall submit to the Division staff member who appointed the hearing
officer a written statement indicating why he or she should be disqualified
from the case. Submission of the statement shall disqualify the hearing
officer. The Division staff member who appointed the hearing officer shall
inform all parties of the disqualification and the reasons therefor.
(b) If a party to the case believes that the hearing
officer of record cannot conduct the hearing in a fair and impartial manner,
the party shall submit an affidavit to the hearing officer for consideration.
The hearing officer shall determine the matter as part of the record in the
case.
(c) When a hearing officer is disqualified or it is
impracticable for the hearing officer to proceed with the hearing, another
hearing officer shall be assigned by the Division staff member who appointed
the hearing officer to proceed with the case. However, if it is shown to the
Division staff member who appointed the hearing officer or the newly assigned
hearing officer that substantial prejudice to any party will result from
continuation of the case then either:
(1) the case shall be dismissed without
prejudice; or
(2) all or part of the case shall be repeated
as necessary to substantially prevent or substantially remove the prejudice.
The Division staff member who appointed the hearing officer shall promptly
inform all parties of the decision to assign a new hearing officer, that the
case has been dismissed without prejudice, or that all or part of the case is
to be repeated. Such notification shall include a statement of the reasons for
the decision.
History Note: Authority G.S. 143-545A; 150B-1; 34
C.F.R. 361.48;
Eff. September 1, 1989;
Amended Eff. April 1, 1997.
10A NCAC 89B .0218 EX PARTE COMMUNICATIONS
(a) Ex parte communications in the appeals hearing shall be
governed by G.S. 150B‑35.
(b) This adoption by reference is made under G.S. 150B‑14(c).
History Note: Authority G.S. 143‑546; 143B‑10(j);
150B‑11; 150B‑14(c); 150B‑35; 34 C.F.R. 361.48;
Eff. September 1, 1989.
10A NCAC 89B .0219 OATH
No person may testify or present arguments, views, or data
orally at the hearing before being put under oath or affirmation.
History Note: Authority G.S. 143‑546; 143B‑10(j);
150B‑11; 34 C.F.R. 361.48;
Eff. September 1, 1989.
10A NCAC 89B .0220 CONDUCT OF HEARING
(a) The hearing officer shall have control over the
hearing, including:
(1) the responsibility of having a record made
of the hearing;
(2) the administration of oaths and
affirmations;
(3) recognition of speakers;
(4) prevention of repetitious presentations;
and
(5) general management of the hearing.
(b) The hearing officer shall conduct the hearing in a
manner that will provide the applicant or client the rights required by 34
C.F.R. 361.57(b)(3).
(c) The hearing shall not be open to the public.
History Note: Authority G.S. 143-546.1; 150B-1; 34
C.F.R. 361.57; P.L. 105-220, s. 102(c);
Eff. September 1, 1989;
Amended Eff. July 1, 2000.
10A NCAC 89B .0221 FAILURE TO APPEAR
(a) If the applicant or client fails to appear at the
hearing and does not have a representative present, the hearing officer shall
cancel the hearing.
(b) The applicant or client may submit a written request
for rescheduling of the hearing to the Division staff member who appointed the
hearing officer. The request shall provide an explanation of the individual's
failure to appear at the hearing or to have a representative present. The
Division staff member who appointed the hearing officer may instruct the
hearing officer to reschedule the hearing upon a showing of good cause by the
applicant or client. "Good cause" may include death or
incapacitating illness of the party or an immediate family member of the party,
the party's representative, or the party's attorney; involvement in an accident
that prevents timely notification of the hearing officer; or failure to receive
proper notice of the hearing.
History Note: Authority G.S. 143-545A; 150B-1; 34
C.F.R. 361.48;
Eff. September 1, 1989;
Amended Eff. April 1, 1997.
10A NCAC 89B .0222 HEARING OFFICER'S DECISION
Following the hearing, the hearing officer shall make and
issue a decision as specified in 34 C.F.R. 361.57(b)(4). The decision shall be
given to the applicant or client personally or by certified mail. If given by
certified mail, it shall be deemed to have been given on the delivery date
appearing on the return receipt.
History Note: Authority G.S. 143-546.1; 150B-1; 34
C.F.R. 361.57; P.L. 105-220, s. 102(c);
Eff. September 1, 1989;
Amended
Eff. July 1, 2000.
10A NCAC 89B .0223 SECRETARY'S REVIEW AND FINAL DECISION
(a) Either party may request an impartial review of the
hearing officer's decision according to the standards in Paragraph (d) of this
Rule by the Secretary of the Department of Health and Human Services within 20
days of the receipt of the decision.
(b) The Secretary may delegate the responsibility for
reviewing the hearing officer's decision and making the final decision to
another employee of the Department but shall not delegate the responsibility to
any officer or employee of the Division.
(c) In conducting the review, the reviewing official shall
send the written notification to both parties and allow the submission of
additional evidence as required by Sec. 102 (c) of the Rehabilitation Act of
1973 (as amended by the Rehabilitation Act Amendments of 1998, P.L. 105-220).
The written notification shall be given personally or by certified mail. If
given by certified mail, it shall be deemed to have been given on the delivery
date appearing on the return receipt.
(d) The reviewing official's review shall be based on the
following standards of review:
(1) Is the hearing officer's decision
arbitrary, capricious, an abuse of discretion, or otherwise unreasonable?
(2) Is the hearing officer's decision supported
by substantial evidence and consistent with facts and applicable federal and
state policy?
(3) In reaching the decision, has the hearing
officer given appropriate and adequate interpretation to such factors as:
(A) the federal statute and regulations as they apply to
specific issue(s) in question;
(B) the state plan as it applies to the specific
issue(s) in question;
(C) division rules as they apply to the specific
issue(s) in question;
(D) key portions of conflicting testimony;
(E) division options in the delivery of services where
such options are permissible under the federal statute; and
(F) restrictions in the federal statute with regard to
such supportive services as maintenance and transportation.
(e) The reviewing official shall make the final decision
and provide such decision in writing to both parties within 30 days of the date
the request for a review of the hearing officer's decision was received. The
decision shall include a full report of the findings and the grounds for the decision.
The reviewing official shall not overturn or modify a decision, or part of a
decision, of an impartial hearing officer that supports the position of the
individual except as allowed under Sec. 102 (c) of the Rehabilitation Act of
1973 (as amended by the Rehabilitation Act Amendments of 1998, P.L. 105-220).
The final decision shall be given to both parties or client personally or by
certified mail. If given by certified mail, it shall be deemed to have been
given on the delivery date appearing on the return receipt.
(f) The hearing officer's decision shall be the final
decision under the conditions specified in Sec. 102(c) of the Rehabilitation
Act of 1973 (as amended by the Rehabilitation Act Amendments of 1998, P.L.
105-220).
(g) The division director shall forward a copy of the final
decision, whether issued under Paragraph (e) or (f) of this Rule, to the Chief
of Operations, the CAP director, the regional director, and the applicant's or
client's representative, as appropriate. A copy shall also be included in the
individual's official case record.
History Note: Authority G.S. 143-545.1; 143-546.1;
150B-1; P.L. 105-220;
Eff. September 1, 1989;
Amended Eff. April 1, 1997; October 1, 1994;
Temporary Amendment Eff. March 15, 1999;
Amended Eff. July 1, 2000.
10A NCAC 89B .0224 EXTENSIONS OF TIME
(a) Reasonable time extensions may be granted for the
procedures in these Rules at the request of a party or at the request of both
parties except for:
(1) the time for continuation of services
during mediation, an appeals hearing or an administrative review as specified
in Rule .0203(d) of this Section;
(2) the time for conducting the appeals hearing
as specified in Rule .0207(b) of this Section which may be extended only as
specified in Rule .0207(b) and (d)(4) of this Section;
(3) the time for issuance of the written notice
of the formal appeals hearing as specified in Rule .0207(c) of this Section;
(4) the time to request a review of the hearing
officer's decision as specified in Rule .0224(a) of this Section; and
(5) the time for the reviewing official's
issuance of a final decision as specified in Rule .0224(d) of this Section.
(b) When an extension of time is being granted by the
person conducting the administrative review, mediation, or the hearing officer,
consideration shall be given to the effect of the extension on deadlines for
other steps in the administrative review, mediation, and appeals process.
History Note: Authority G.S. 143-546.1; 150B-1; 34
C.F.R. 361.57; P.L. 105-220, s. 102(c);
Eff. September 1, 1989;
Amended Eff. July 1, 2000.
10A NCAC 89B .0225 RECORD
(a) The official records of appeals hearings shall be
maintained in the central office of the Division.
(b) Any person wishing to examine a hearing record shall
submit a written request to the Chief of Operations who shall have the record
prepared for inspection, including the removal of any confidential material.
History Note: Authority G.S. 143-545A; 150B-1; 34
C.F.R. 361.48;
Eff. September 1, 1989;
Amended Eff. April 1, 1997.
10A NCAC 89B .0226 TRANSCRIPTS
Any person desiring a transcript of all or part of an
appeals hearing shall contact the office of the Chief of Operations. A fee to
cover the cost of preparing the transcript shall be charged, and the party may
be required to pay the fee in advance of receipt of the transcript. The
transcript may be edited to remove confidential material.
History Note: Authority G.S. 143-545A; 150B-1; 34
C.F.R. 361.48;
Eff. September 1, 1989;
Amended Eff. April 1, 1997.
10A NCAC 89B .0227 CIVIL ACTION
Judicial review of decisions issued pursuant to Rules .0202
through .0225 of this Section shall be as specified in Sec. 102(c) of the
Rehabilitation Act of 1973 (as amended by the Rehabilitation Act Amendments of
1998, P.L. 105-220).
History Note: Authority G.S. 143-545.1; 143-546.1;
150B-1; P.L. 105-220;
Eff. September 1, 1989;
Temporary Amendment Eff. March 15, 1999;
Amended Eff. July 1, 2000.