Ariz. Admin. Code § 6-4-404

Current through Register Vol. 30, No. 45, November 8, 2024

Section R6-4-404 - Administrative Review and Fair Hearings

A. General considerations.

1. Pursuant to federal regulations (CFR 1361.46) the VR Agency shall provide for applicants or clients of Vocational Rehabilitation who are dissatisfied with any action with regard to the furnishing or denial of services, a chance to file a request for an administrative review and redetermination of that action. When the individual is dissatisfied with the finding of this administrative review, he shall be granted an opportunity for a hearing. All clients must be informed of this provision at the time they apply for services.

2. A dissatisfied client has a number of recourses which shall be explored before an administrative review or a hearing is necessary or recommended:

a. Clients shall first be encouraged to discuss problems with their counselor. It is a normal part of counseling that the client and counselor must from time-to-time confront issues not pleasant or agreeable to either. The counselor/client relationship must be preserved if at all possible, not to protect the agency but to preserve the necessary continuity and autonomy of that counseling relationship.

b. When it is clear to either counselor, client or supervisor that the client/counselor relationship has broken down or that disagreements are not solvable within the context of that relationship, several alternatives may be considered.

i. Assignment to different counselor if the problem is judged to be a conflict in personality or style of relating;

ii. Meeting of client with the counselor's immediate supervisor with or without counselor present to help clarify policy or programmatic issues. This may result in either the transferring of case to another counselor or renewed attempt to reestablish the original client/counselor relationship;

iii. For this type of informal review, it is often helpful for supervisor to request or bring in outside consultation to help clarify the issues or problems.

c. If, after all alternatives have been explored, and the client remains dissatisfied, he shall be reminded of the recourse he has for an administrative review and must be assisted in receiving the benefit of such a review. Courtesy, fairness and promptness must guide the counselor's or supervisor's actions. After it has been established that a review will be set up, the counselor or supervisor may not change a program of services or take any new action on the case regarding the issue(s) raised until such issues have been resolved, nor may an attempt be made to influence the direction of the review.

3. Administrative review.

a. An administrative review is instituted at the request (written or verbal) of a client or applicant who is dissatisfied with any action regarding the furnishing or denial of services. Other informal avenues are to be explored before an administrative review is instituted. Requests for review, if in writing, shall be filed in client's case and copy forwarded to District VR Program Manager.

b. An administrative review shall be set up and held at the district level by District VR Program Manager or SBS/VR Manager. The individual with whom the complaint is filed is responsible for making necessary arrangements or to see that such arrangements are made. The hearing shall be conducted at a reasonable time, date and place and adequate preliminary written notice shall be given.

c. Persons to be involved are:

i. Client who is requesting the review;

ii. District VR Program Manager or SBSVR Manager as representatives of the Bureau Chief;

iii. VR Counselor involved;

iv. If client is deaf or mute, an interpreter will be present;

v. If the client does not have an adequate "grasp" of the English language, then an interpreter must be provided.

d. Persons who may also be involved:

i. Client may request to have a representative present;

ii. Other specialists at the discretion of District VR Program Manager.

e. Review procedures:

i. Minutes of the meeting shall be taken which summarize the issues raised, facts presented and discussion (a verbatim transcript is not required). If decisions were made during the review, they are also to be recorded. A copy of such minutes must be kept in permanent record files.

ii. The counselor is asked first to summarize the problem and to present his position;

iii. The client is asked if he has any questions and then to present his views on the problem and his position. In turn, the counselor may ask him questions.

iv. Discussion may follow with each individual given a chance to make closing comments. The client should be allowed to speak last.

f. Client shall be advised that the Administrative Review is not a legal hearing but an attempt to resolve conflicts by clarifying the issues, reviewing decisions and deciding whether to uphold those decisions based on state and federal laws, rules, regulations and policies as they apply to the particular circumstances of the case. The Agency must give timely and adequate notice to the client of decisions reached. Decision will be made within ten working days following the review.

g. Any decisions must be made with due regard to client's rights. The district VR Program Manager must be able and willing to state to the client the reasons for decisions reached.

h. The District VR Program Manager must advise RSB of a pending review. Technical assistance will be provided on request.

i. The results of the meeting shall be recorded as well as the rationale for any decisions made. A copy of this is to be forwarded to Rehabilitation Services Bureau and original filed with the District VR Program Manager; client's lawyer or representative shall also be furnished a copy on request. Records shall include the issues raised and discussed by both sides, evidence used and proposed findings, decisions or opinions. Client's case file will contain the facts and findings of the review.

j. All those participating in the review shall be advised that confidential information is involved and confidentiality must be observed. If non-VR individuals are present, the client should be asked to sign an authorization for release of personal information before proceeding. Client consent should never be presumed. Medical or psychological data obtained from third party may not be released without express authorization from that party. All other rules of confidentiality contained in federal regulations must be observed.

k. If the client remains dissatisfied with the results of an administrative review, the client may request a hearing.

l. The RSB Chief, as administrator of the single state agency, (per CFR 1361.46) acknowledges the Appeals Bureau under the Department's Deputy Director as his designee to represent him in hearings, reserving the right, however, under R6-4-304(C), reconsideration, to request a reconsideration of the hearing officer's decision by the Director.

B. Fair hearings.

1. Filing of appeal.

a. A request for a hearing shall be filed in writing with the Department or provider within fifteen calendar days after the mailing date of the decision letter.

b. Except as otherwise provided by Statute or by Department regulation, any appeal, application, request, notice, report, or other information or document submitted to the Department shall be considered received by and filed with the Department.

i. If transmitted via the United States Postal Service, or its successor, on the date it is mailed. The mailing date will be as follows:

(1) As shown by the postmark;

(2) In the absence of a postmark the postage meter mark of the envelope in which it is received;

(3) If not postmarked or postage meter marked, or if the mark is illegible, the date entered on the document as the date of completion.

ii. If transmitted by any means other than the United States Postal Service or its successor, on the date it is received by the Department.

iii. The submission of any appeal, application, request, notice, report, or other information or document not within the specified statutory or regulatory period shall be considered timely if it is established to the satisfaction of the Department that the delay in submission was due to Department error or misinformation, or to delay or other action of the United States Postal Service or its successor.

iv. Any notice, determination, decision, or other data mailed by the Department shall be considered as having been given to the addressee to whom it is directed on the date it is mailed to the addressee's last known address. The date mailed shall be presumed to be the date of the notice, determination, decision, or other date unless otherwise indicated by the facts. Computation of time shall be made in accordance with rule 6(a) of the rules of Civil Procedure, 16 A.R.S.

c. Benefits shall not be reduced or terminate prior to a hearing decision unless such is due to a subsequent change in household eligibility and/or another notice of adverse action is received and not timely appealed.

d. The local office or provider shall advise the client of any community legal services available and, when requested, shall assist in completing the hearing request.

2. Notice of hearing.

a. Hearings will be held at the local office or any other place mutually agreed upon by the hearing officer and appellant. They shall be scheduled not less than twenty, nor more than thirty, days from the date of filing of the request for hearing. The appellant shall be given no less than 15 days notice of hearing except that the appellant may waive the notice period or request a delay.

b. The notice of hearing shall inform the appellant of the date, time, and place of the hearing, the name of the hearing officer, the issues involved, and of his rights to: present his case in person or through a representative; examine and copy any documents in the Department's possession which pertain to the issue prior to the hearing; obtain assistance from the local office in preparing his case; and of his opportunity to make inquiry at the local office about the availability of community legal resources which could provide representation at the hearing.

c. Appellant, in lieu of a personal appearance, may submit a written statement, under oath or affirmation, setting forth the facts of the case provided that the statement is submitted to the Department prior to or at the time of the hearing. All parties shall be ready and present with all witnesses and documents at the time and place specified in the notice of hearing, and shall be prepared at such time to dispose of all issues and questions involved in the appeal.

d. The hearing officer may take such action for the proper disposition of an appeal as he deems necessary, and on his own motion, or at the request of any interested party upon a showing of good cause may continue the hearing to a future time or reopen a hearing before a decision is final to take additional evidence. If an interested party fails to appear at a scheduled hearing, the hearing officer may adjourn the hearing to a later date, or may make his decision upon the record, and such evidence as may be presented at the scheduled hearing. If within ten days of the scheduled hearing, appellant files a written application requesting reopening of the proceedings, and establishes good cause for failure to appear at the scheduled hearing, the hearing shall be rescheduled. Notice of the time, place, and purpose of any continued, reopened, or rescheduled hearing shall be given to all interested parties.

3. Pre-hearing summary.

a. A pre-hearing summary of the facts and grounds for the action taken shall be prepared and forwarded to the hearing officer no less than four days prior to the hearing.

b. The summary shall be provided to the appellant prior to the commencement of the hearing.

4. The hearing officer may subpoena any witnesses or documents requested by the Department or claimant to be present at the hearing. The request shall be in writing and shall state the name and address of the witness and the nature of his testimony. The nature of the witnesses testimony must be relevant to the issues of the hearing, otherwise the hearing officer may deny the request. The request for the issuance of a subpoena shall be made to give sufficient time, a minimum of three working days, prior to the hearing. A subpoena requiring the production of records and documents shall specifically describe them in detail and further set forth the name and address of the custodian thereof.

5. Review of file. In the presence of a Department representative, the appellant and/or his authorized representative shall be permitted to review, obtain, or copy any Department record necessary for the proper presentation of the case.

6. Conduct of the hearing.

a. Hearings shall be conducted in an orderly and dignified manner.

b. Hearings are opened, conducted and closed by the hearing officer who shall rule on the admissibility of evidence, and shall direct the order of proof. He shall have power to administer oaths and affirmations, take depositions, certify to official acts, and issue subpoenas to compel the attendance of witnesses; the production of books, papers, correspondence, memoranda, and other records he deems necessary as evidence in connection with a hearing.

c. Evidence not related to the issue shall not be allowed to become a part of the record.

d. The hearing officer may, on his own motion, or at the request of the appellant or Department representative, exclude witnesses from the hearing room.

e. The worker, supervisor, or other appropriate person may be designated Department representative for the hearing.

f. The appellant and Department representative may testify, present evidence, and cross-examine witnesses and present arguments.

g. The appellant may appear for himself or be represented by an attorney or any other person he designates.

h. A full and complete record shall be kept of all proceedings in connection with an appeal, and such records shall be open for inspection by any interested party. A transcript of the proceedings need not, however, be made unless it is required by the Director for further proceedings. When a transcript has been made for further proceedings, a copy shall be furnished without cost to each interested party.

7. Hearing decision.

a. The hearing decision shall be rendered exclusively on the evidence and testimony produced at the hearing and Department rules governing the issues in dispute.

b. The decision shall set forth the pertinent facts involved, the conclusions drawn from such facts, the sections of applicable law or rule, the decision and the reasons therefor. A copy of such decision, together with an explanation of the appeal rights, shall be delivered or mailed to each interested party and their attorneys of record not more than sixty days from the date of filing the request for appeal, unless the delay was caused by the appellant.

c. In those cases where the local office must take additional action as a result of a decision, such action must be taken immediately.

d. All decisions in favor of the appellant apply retroactively to the date of the action being appealed, or to the date the hearing officer specifically finds appropriate.

e. When a hearing decision upholds the proposed action of reducing, suspending, or terminating a grant, an overpayment is the result.

f. All hearing decisions will be made accessible to the public, subject to meeting the provision for safeguarding confidential information relating to the client.

g. Decision of the hearing officer will be the final decision of the Department unless a reconsideration is requested in accordance with Section I.

h. Pursuant to A.R.S. § 36-563(C), Bureau of Mental Retardation decisions shall become final upon issuance of an order of the Director.

8. Withdrawal of appeal.

a. An appeal may be withdrawn as follows:

i. Voluntary withdrawal. This may be accomplished by completing and signing the proper Department form, or by submitting a letter properly signed.

ii. Abandonment or involuntary withdrawal. This occurs when an appellant fails to appear at a scheduled hearing and within ten days thereof fails to request a rescheduled hearing, or fails to appear at a rescheduled hearing which he has requested. A hearing may not be considered abandoned if the claimant provides notification up to the time of the hearing that he is unable, due to good cause, to keep the appointment and that he still wishes a hearing.

C. Reconsideration.

1. An appellant, within ten calendar days after the decision was mailed or otherwise delivered to him, may request the Director to review the decision. (Exception, see R6-4-304(A)(3)(e) ) The request shall be in writing and should set forth a statement of the grounds for review and may be filed personally or by mail.

2. After receipt of the request, the Director shall:

a. Remand the case for rehearing, specifying the nature of any additional evidence required and/or issues to be considered, or

b. Decide the appeal on the record.

3. The Director shall promptly adopt his decision which shall be the final decision of the Department. A copy of the decision, together with a statement specifying the rights for judicial review, shall be distributed to each interested party.

Ariz. Admin. Code § R6-4-404

Adopted effective June 14, 1977 (Supp. 77-3). Amended effective June 9, 1978 (Supp. 78-3). Renumbered from R6-4-304 effective May 7, 1990 (Supp. 90-2).