Hawaii Administrative Rules
Title 17 - DEPARTMENT OF HUMAN SERVICES
Department of Human Services
Chapter 400.1 - VOCATIONAL REHABILITATION ADMINISTRATION
Section 17-400.1-7 - Hearing
Universal Citation: HI Admin Rules 17-400.1-7
Current through February, 2024
(a) The following hearing procedures shall be followed whenever an applicant or eligible individual or, as appropriate, individual's representative requests for a review of a determination made by personnel of the division that affects the provision of VR services or general services for the blind to the individual, unless informal resolution or a mediation agreement is achieved prior to hearing:
(1) The hearing (formal due process hearing)
must be held within 60 days of the date of the receipt of an applicant's or
eligible individual's or, as appropriate, individual's representative's request
for review, unless informal resolution or a mediation agreement is achieved
prior to the 60th day of the request for review, or
the parties agree to a specific extension of time.
(2) The hearing shall be conducted by a
qualified and impartial hearing officer defined as follows:
(A) Is not an employee of a public agency
other than an employee of a public agency who is an administrative law judge,
hearing examiner, or employee of an institution of higher education;
(B) Is not a member of the State
Rehabilitation Council for the division;
(C) Has not been involved previously in the
vocational rehabilitation of the applicant or eligible individual;
(D) Has knowledge of the delivery of VR
services, the State plan under section 101 of the Act, and the Federal and
State rules governing the provision of VR services;
(E) Has received training with respect to the
performance of official duties; and
(F) Has no personal or financial interest
that would be in conflict with the objectivity of the individual.
(3) The division shall maintain a
list of qualified and impartial hearing officers.
(A) The list shall be jointly identified by
the division and members of the State Rehabilitation Council.
(B) The applicant or eligible individual or,
as appropriate, individual's representative, must select a first and second
choice of impartial hearing officers from the list of qualified and impartial
hearing officers:
(i) By a random method,
from numbered chips corresponding to the names on the division's list of
qualified and impartial hearing officers; or
(ii) By name, from the list of qualified and
impartial hearing officers, in the order of preference of the individual or
individual's representative.
(C) The individual or individual's
representative shall be informed that the purpose for naming a second choice is
to avoid delay should the impartial hearing officer of first choice not be
available, and that the individual or individual's representative will be
provided opportunity for further selection if the hearing officer of first and
second choice is not available.
(D)
The individual's or individual's representative's selection shall be documented
on the division's form for selection of impartial hearing officer, and filed in
the division's record of services for the individual. A copy shall be given to
the individual or individual's representative as early as possible.
(E) A copy of the completed selection form
and other necessary documents shall be immediately forwarded to the division
administrator.
(4) An
applicant or eligible individual or, as appropriate, the individual's
representative shall be provided opportunity to submit during the hearing,
evidence and other information that supports the applicant's or eligible
individual's position. However, discussions that occurred during the mediation
process described in section 17-400.1-6 shall be confidential and may not be
used as evidence in any due process hearing or civil proceeding pursuant to
section 17-400.1-6(c) (4).
(5) An
applicant or eligible individual shall be allowed to be represented during the
hearing by counsel or other advocate selected by the applicant or eligible
individual. In addition, the applicant or eligible individual or, as
appropriate, the individual's representative must be given the opportunity to
present witnesses during the hearing and to examine all witnesses and other
relevant sources of information and evidence.
(6) Interpreter or reader services shall be
arranged by the division for an applicant or eligible individual or, as
appropriate, individual's representative, who is non English-speaking or who is
deaf, blind, or deaf-blind.
(7) The
division may pay for transportation of the individual to and from the place of
the hearing when the individual is unable to meet such costs and requests for
payment by the division, but the division is not required to pay for any costs
related to the representative authorized under paragraph (5).
(8) A written position statement explaining
the reasons for the division's action or decision, and citing the authority or
the specific sections of the State plan, statutes, rules or policy on which the
decision was based, shall be submitted to the impartial hearing officer and the
applicant or eligible individual or, as appropriate, individual's
representative in advance of the hearing. A copy of this statement shall be
filed in the division's record of services for the individual.
(9) The division may not institute a
suspension, reduction, or termination of VR services being provided to an
applicant or eligible individual, including evaluation and assessment services
and IPE development, pending a resolution through hearing under this section,
unless:
(A) The individual or, in appropriate
cases, the individual's representative requests a suspension, reduction, or
termination of services; or
(B) The
division has evidence that the services have been obtained through
misrepresentation, fraud, collusion, or criminal conduct on the part of the
individual or the individual's representative.
(10) Notice of hearing shall be issued by the
impartial hearing officer in writing and sent by certified mail with return
receipt requested at least 15 days before the hearing. The notice shall include
a statement of:
(A) The date, time, place and
nature of hearing;
(B) The legal
authority under which the hearing is to be held;
(C) The particular sections of the statutes
and rules involved;
(D) An explicit
statement in plain language of the issues involved and the facts alleged by the
division in support thereof, provided that the initial notice may be limited to
a statement of the issues involved if the division is unable to state such
issues and facts in detail at the time the notice is served, and furnishes a
bill of particulars thereafter upon application; and
(E) The fact that any party may retain
counsel if the party so desires and the fact that the individual is allowed to
be represented by counsel or other appropriate advocate.
(11) The hearing may be postponed at the
request of the individual or, as appropriate, individual's representative, or
the division administrator. Reasonable extension of time for good cause shown
at the request of a party or at the request of both parties shall be
allowed.
(12) A hearing may be
canceled only if the following occurs:
(A) The
individual or, as appropriate, individual's representative, fails to appear.
(i) The appropriate branch administrator
shall determine cause for failure to appear.
(ii) If for good cause (e.g. unable to call
or appear due to emergency hospitalization on the day of the hearing), and the
individual or individual's representative shows continued desire and interest
for a hearing, the branch administrator shall submit a written decision to the
impartial hearing officer to allow for rescheduling of the hearing. The hearing
shall be rescheduled and conducted by the impartial hearing officer within
three weeks following receipt of the branch administrator's written decision
with the understanding of the parties that the three week period shall satisfy
any need for specific extension of time beyond the required 60-day time period
for conducting the hearing.
(iii)
If without good cause (e.g. could have notified the hearing officer or division
of need to reschedule but failed to do so, and failed to appear), the
individual's or, as appropriate, individual's representative's failure to
appear shall be treated as a final decision to terminate the request for
review.
(iv) The branch
administrator shall inform the individual or, as appropriate, individual's
representative, the division administrator, and the impartial hearing officer
of the branch administrator's decision and reasons, in writing.
(v) A copy of the branch administrator's
decision shall be filed in the division's record of services for the
individual.
(B) The
individual or, as appropriate, individual's representative requests for
cancellation of the hearing.
(i) The
individual or, as appropriate, individual's representative's request for
cancellation shall be acknowledged in writing by the branch
administrator.
(ii) The branch
administrator shall also notify the individual or, as appropriate, individual's
representative of the individual's right to reactivate the request for hearing
if the individual wishes within 30 days of the date of the notice of
cancellation.
(C)
Corrective action, by the division, is taken before the hearing and agreed to
by the individual or, as appropriate, individual's representative.
(i) The branch administrator shall seek a
cancellation with the applicant or eligible individual or, as appropriate,
individual's representative and acknowledge the cancellation in
writing.
(ii) All actions taken and
results obtained shall be documented and reported to the division
administrator. A copy of the documentation shall be filed in the division's
record of services for the individual.
(b) The impartial hearing officer selected in accordance with subsection (a)(3), shall be compensated for conducting the hearing at a rate determined by the division, and shall preside over the entire proceeding and must:
(1) Make
a decision based on the provisions of the approved State plan, the Act, Federal
VR regulations, and applicable State rules and policies that are consistent
with Federal requirements; and
(2)
Provide to the individual or, if appropriate, individual's representative and
the division administrator, a full written report of the findings and grounds
for the decision within 30 days of the completion of the hearing.
(c) The hearing officer's decision is final, except that any party involved in a hearing who is dissatisfied with the hearing officer's decision may bring a civil action under subsection (d).
(1) If a party brings a civil action under
subsection (d) to challenge the final decision of a hearing officer, the final
decision of the hearing officer must be implemented pending review by the
court.
(2) All matters relating to
the hearing shall be heard and disposed of within 90 days from the date of the
request for review, except in those cases where:
(A) The individual withdraws or abandons the
request for a hearing; or
(B) The
matter is postponed for good cause. The time limit shall be extended only for
the period of the continuance.
(d) Any party involved in a hearing who disagrees with the findings and decision of an impartial hearing officer under subsection (c) has a right to bring a civil action with respect to the matter in dispute.
(1) The action may be brought in
any State court of competent jurisdiction or in a district court of the United
States of competent jurisdiction without regard to the amount in
controversy.
(2) In any action
brought under this subsection, the court:
(A)
Receives the records related to the hearing;
(B) Hears additional evidence at the request
of a party to the action; and
(C)
Grants the relief that the court determines to be appropriate, basing its
decision on the preponderance of the evidence.
Disclaimer: These regulations may not be the most recent version. Hawaii may have more current or accurate information. We make no warranties or guarantees about the accuracy, completeness, or adequacy of the information contained on this site or the information linked to on the state site. Please check official sources.
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