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Section .0100 ‑ Rule‑Making Procedures


Published: 2015

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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.