Section 4712 - Fair hearing procedure(a)(1) The fair hearing shall be held within 50 days of the date the appeal request form is received by the department or other agency designated by the department to receive appeal request forms, unless a continuance is granted to the claimant. A claimant's first request for a continuance made prior to the commencement of the hearing shall be granted without a showing of good cause. A claimant may request additional continuances based on a showing of good cause. A claimant's request for a continuance shall result in a waiver of the claimant's Medicaid home and community-based services right to a decision within 90 days of the date the appeal request form is received.(2) The regional center or state-operated facility also may request a continuance based upon a showing of good cause, provided that the granting of the continuance does not extend the time period for rendering a final administrative decision beyond the 90-day period provided for in this chapter. For purposes of this section, good cause for either party includes, but is not limited to, the following circumstances: (A) Death of a spouse, parent, child, brother, sister, or grandparent of the claimant or authorized representative, or of the regional center or state-operated facility representative.(B) Personal illness or injury of the claimant or authorized representative, or of the regional center or state-operated facility representative.(C) Sudden and unexpected emergencies, including, but not limited to, court appearances or conflicting schedules if the conflict is beyond the control of the claimant, authorized representative, or regional center or state-operated facility representative.(D) Unavailability of a witness or evidence, the absence of which would result in serious prejudice to the claimant or the regional center or state-operated facility.(E) An intervening request for mediation by the claimant or the claimant's authorized representative.(b)(1) Notwithstanding Sections 19130, 19131, and 19132 of the Government Code, the department shall contract for the provision of independent hearing officers. Hearing officers shall have had at least two years of full-time legal training at a California or American Bar Association accredited law school or the equivalent in training and experience as established by regulations adopted by the department.(2) Hearing officers shall receive training and information in the law and regulations governing services to people with intellectual and developmental disabilities and administrative hearings. Training shall include, but not be limited to, the Lanterman Developmental Disabilities Services Act and regulations adopted thereunder, relevant written directives and guidance issued by the department, relevant case law, information about services and supports available to persons with developmental disabilities, including innovative services and supports, the standard agreement contract between the department and regional centers, and regional center purchase-of-service policies. The training shall include methods to create an impartial and informal hearing environment that encourages the free and open exchange of information and engages the parties to bring out relevant facts, protecting the rights of claimants at fair hearings, with emphasis on assisting, if appropriate, an unrepresented claimant, family member, authorized representative, or advocate inexperienced in administrative hearings in fully developing the administrative record. The training also shall include information about disabilities and disability-related supports that may enable participation in a hearing, and reasonable accommodations to reduce barriers.(3) The department and the hearing office shall seek the advice of stakeholders, including recipients and family members representing diverse disabilities and backgrounds, the State Council on Developmental Disabilities, the protection and advocacy agency identified in Division 4.7 (commencing with Section 4900) and designated by the Governor in this state to fulfill the requirements and assurances of the federal Developmental Disabilities Assistance and Bill of Rights Act of 2000, contained in Chapter 144 (commencing with Section 15001) of Title 42 of the United States Code, the Association of Regional Center Agencies, advocacy organizations, and other state agencies or organizations in the development of standardized hearing procedures for hearing officers and training materials and the implementation of training procedures by the department. The department shall provide formal training for hearing officers on at least an annual basis.(c) The hearing officer shall not be an employee, agent, board member, or contractor of the regional center or state-operated facility against whose action the appeal has been filed, or a spouse, parent, child, brother, sister, grandparent, legal guardian, or conservator of the claimant, or any person who has a direct financial interest in the outcome of the fair hearing, or any other interest that would preclude a fair and impartial hearing.(d)(1) The regional center or state-operated facility shall prepare a position statement and send it electronically to the hearing office and the claimant, unless the claimant has communicated an alternative way to receive the document, at least two business days prior to the hearing. The position statement shall summarize the facts of the case and set forth the justification of the regional center's or state-operated facility's action and shall include a list of witnesses that it intends to call during the hearing, the general subject of the testimony of each witness, and copies of all documentary evidence that it intends to use. (A) If the preferred language of the claimant or their authorized representative is not English, the regional center also shall provide a copy of the position statement in their preferred language.(B) If the regional center or state-operated facility cannot provide a copy of the position statement in the preferred language of the claimant or their authorized representative two business days prior to the hearing, the regional center or state-operated facility shall notify the claimant or their authorized representative, provide a copy of the position statement in English, and apply for a continuance of the hearing accompanied by evidence of its efforts to translate the position statement.(C) The hearing officer shall, unless the claimant or their authorized representative indicates they want to proceed to hearing, continue the hearing for no more than 10 days following a determination that the regional center or state-operated facility has provided satisfactory evidence of its efforts to translate the position statement. The translated position statement shall be provided at least two business days prior to the continued hearing.(2) At least two business days prior to the hearing, a claimant who is not represented by an attorney licensed to practice law in California shall make available to the regional center or state-operated facility and the hearing office a list of intended witnesses and a brief description of their relationship to the claimant and copies of any professional assessments or reports related to eligibility or services that the claimant intends to use at hearing. At or before the hearing, the claimant also shall make available to the regional center or state-operated facility and the hearing office copies of all other intended documentary evidence.(3) If the claimant is represented by, or is, an attorney licensed to practice law in California, the claimant's attorney shall prepare a position statement and make it available to the regional center or state-operated facility and the hearing office at least two business days prior to the hearing. The position statement shall summarize the facts of the case and set forth the justification for the claimant's position and shall include a list of intended witnesses, the general subject of the testimony of each witness, and copies of all documentary evidence intended to be used.(4)(A) The hearing officer may prohibit testimony of a witness or the introduction of documents that have not been disclosed. However, the hearing officer may allow introduction of documents or witness testimony in the interest of justice.(B) In considering an unrepresented claimant's failure to disclose testimony or documents, the hearing officer also may consider the claimant's understanding of the disclosure requirements, disability factors that made it difficult for the claimant to comply with the rule, and the impact of excluding testimony or documents on the hearing officer's ability to assist the parties in bringing out relevant facts.(e)(1) The fair hearing shall be held at a time and place reasonably convenient to the claimant and the authorized representative. The claimant or the authorized representative of the claimant and the regional center shall agree on the place of the fair hearing.(2) A place pursuant to paragraph (1) may include an agreement of the parties, or an order by a hearing officer, following a finding of good cause, to conduct the hearing by telephone, videoconference, or other electronic means.(f) Merits of a pending fair hearing shall not be discussed between the hearing officer and a party outside the presence of the other party.(g) The hearing officer shall voluntarily disqualify themselves and withdraw from any case in which the hearing officer cannot accord a fair and impartial hearing or consideration. Any party may request the disqualification of the hearing officer by filing an affidavit or making an objection on the record, prior to the taking of evidence at a hearing, stating with particularity the grounds upon which it is claimed that a fair and impartial hearing cannot be accorded. The issue shall be decided by the hearing officer and may be reviewed as part of the reconsideration process specified in Section 4713.(h) Both parties to the fair hearing shall have the rights specified in subparagraphs (A) to (C), inclusive, of paragraph (9) of subdivision (a) of Section 4701.(i)(1) The fair hearing shall be conducted in an impartial and informal manner in order to encourage the presentation of information and the free and open discussion by participants. The hearing officer shall make their best effort to fully and fairly develop the record and create an environment in which all relevant facts, both favorable and unfavorable, are brought out and to engage the parties to bring out the facts.(2) The fair hearing need not be conducted according to the technical rules of evidence and those related to witnesses. Any relevant evidence shall be admitted. Both parties shall be allowed to submit documents into evidence at the beginning of the hearing. A party shall not be required to formally authenticate any document unless the hearing officer determines the necessity to do so in the interest of justice. All testimony shall be under oath or affirmation which the hearing officer is empowered to administer.(3) The hearing officer may do any of the following during the hearing to assist in bringing out all relevant facts: (A) Question a witness on the record.(B) Call a witness to testify at the hearing.(C) Hold the record open to allow a party to obtain necessary testimony or documentation identified by the hearing officer during the course of the fair hearing.(j) A regional center or state-operated facility shall present its witnesses and all other evidence before the claimant presents the claimant's case unless the parties agree otherwise or the hearing officer determines that it is appropriate for a witness to be heard out of order. This section does not alter the burden of proof.(k) A recording shall be made of the proceedings before the hearing officer. Any cost of recording shall be borne by the hearing office.(l) The fair hearing shall be conducted in the English language. However, if the preferred language of the claimant or authorized representative is not English, an interpreter shall be provided by the hearing office.(m) The fair hearing shall be open to the public except at the request of the claimant or authorized representative or when personnel matters are being reviewed.(n) The hearing office awarded the contract for independent hearing officers shall biennially conduct, or cause to be conducted, an evaluation of the hearing officers who conduct hearings under this part. The department shall approve the methodology used to conduct the evaluation. Information and data for this evaluation shall be solicited from recipients or applicants who participated in a fair hearing over the past two years, their family members or authorized representative if involved in the hearing, regional centers, and nonattorney advocates, attorneys who represented either party in a fair hearing over the past two years, and the organizations identified in paragraph (3) of subdivision (b). Regional centers shall forward copies of fair hearing decisions reviewed by the superior court to the department. The areas of evaluation shall include, but not be limited to, the hearing officers' demeanor toward parties and witnesses, conduct of the hearing in accord with fairness and standards of due process, ability to fairly develop the record in cases in which applicants or recipients represent themselves or are represented by an advocate that does not have significant experience in fair hearings, use of legal authority, clarity of written decisions, and adherence to the requirements of subdivision (c) of Section 4712.5. The department shall be provided with a copy of the evaluation and shall use the evaluation in partial fulfillment of its evaluation of the contract for the provision of independent hearing officers. A summary of the data collected shall be made available to the public upon request, provided that the names of individual hearing officers and the names and other identifiable information about applicants and recipients shall not be disclosed.(o) This section shall become operative on March 1, 2023.Ca. Welf. and Inst. Code § 4712
Added by Stats 2022 ch 49 (SB 188),s 57, eff. 6/30/2022.