This
rule was filed as 6 NMAC 8.101.1.
TITLE 6 PRIMARY
AND SECONDARY EDUCATION
CHAPTER 101 VOCATIONAL REHIBILITATION - PROCEDURAL SAFEGUARDS
PART 2 FAIR
HEARINGS RELATED TO VOCATIONAL REHABILITATION
6.101.2.1 ISSUING
AGENCY: State Board of Education
[12-31-98;
07-30-99; Recompiled 10/31/01]
6.101.2.2 SCOPE: The provisions of this regulation apply to
persons applying for or receiving vocational rehabilitation and aggrieved by
any action or inaction of DVR or the director of DVR.
[12-31-98;
Recompiled 10/31/01]
6.101.2.3 STATUTORY
AUTHORITY: This regulation is
adopted pursuant to Sections 22-14-8 and 22-14-12 NMSA 1978.
[12-31-98;
Recompiled 10/31/01]
6.101.2.4 DURATION: Permanent.
[12-31-98;
Recompiled 10/31/01]
6.101.2.5 EFFECTIVE
DATE: December 31, 1998
[12-31-98;
Recompiled 10/31/01]
6.101.2.6 OBJECTIVE: To establish a means by which an individual who
has applied for or is a recipient of vocational rehabilitation services can
appeal: a determination of a counselor concerning the furnishing or denial of
services; any action or inaction of the vocational rehabilitation division or
the director of vocational rehabilitation.
A request for a fair hearing is to be construed liberally to allow a client
to seek redress for DVR decisions that affect his case.
[12-31-98;
Recompiled 10/31/01]
6.101.2.7 DEFINITIONS:
[RESERVED]
[Recompiled
10/31/01]
6.101.2.8 FAIR
HEARING:
A. Requesting a Fair Hearing: How to Request a Hearing. A request for hearing shall be made to the
director of DVR, at 435 St. Michael's Drive, Building D, Santa Fe, New Mexico
87505. A hearing request should indicate the contested decision and the
counselor assigned to the case. A hearing request must be made within twenty
days of the disputed decision.
B. Appointment of a hearing officer: A hearing officer
shall be appointed on a random basis or by agreement between the client and the
DVR director. The selection of a hearing officer shall be made from a pool of
qualified hearing officers established jointly by the state rehabilitation advisory
council and the DVR Director. The hearing officer shall not be an employee of
DVR.
C. Time of Hearing: The hearing shall be held not less
than ten nor later than forty-five days from the date of the request for
hearing. The time limit may be extended by the hearing officer upon the request
of either party, for good cause shown. The time limit may also be extended upon
agreement of both parties.
E. Opportunity to Present Evidence: At the hearing,
the client or client's representative shall be allowed to present evidence,
information, and witnesses to the hearing officer, and to examine all witnesses
and other sources of evidence and information.
F. Duties of Hearing Officer: The hearing officer
shall:
(1) conduct a pre-hearing conference on a
date reached by mutual agreement between the parties;
(2) administer oaths and affirmations to the
witnesses;
(3) regulate the course and conduct of the
hearing;
(4) assure that all properly raised and
relevant issues are considered;
(5) rule on the introduction of testimony and
other evidence (the technical rules of evidence do not apply);
(6) assure that the proceedings are properly
recorded;
(7) review the evidence and testimony;
(8) make a decision based upon the facts
presented at the hearing, the provisions of the approved state plan, the
Rehabilitation Act of 1973 and accompanying federal regulations, the manual of
operating procedures, and good rehabilitation practice.
G. Decision of Hearing Officer: The hearing officer
shall issue a written decision within thirty days of the completion of the
hearing. The decision shall fully set forth the findings of the hearing officer
and the grounds for the decision.
H. A decision by a hearing officer shall be final unless a
party brings civil action under section 8.9 [Subsection J of 6.101.2.8 NMAC].
I. Review by Director: The director of DVR may not
overturn a hearing officer's decision.
J. Provision of Services Pending Appeal: Pending a
final determination of a civil action, DVR shall not suspend, modify , or
terminate services being provided under an individualized written
rehabilitation program, unless such services have been obtained through
misrepresentation, fraud, collusion, or criminal conduct on the part of the
individual with a disability.
K. Civil Action: Any party aggrieved by a final
decision described in section 8.6 [Subsection G of 6.101.2.8 NMAC] may bring a
civil action for review of such decision. 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 a the amount in controversy.
In any action brought under this subparagraph, the court:
(1) shall receive the records relating to the
hearing and the records relating to the state review, if applicable;
(2) shall hear additional evidence at the
request of the party to the action; and
(3) basing the decision of the court on the
preponderance of the evidence, shall grant such relief as the court determines
to be appropriate.
[12-31-98,
02-14-00; Recompiled 10/31/01]
History of 6.101.2 NMAC
Pre-NMAC History: The material in this Part is derived from that
previously filed with the state records and archives under:
State
Board of Education Regulation No. 93-15, Vocational Rehabilitation Fair
Hearings, filed October 08, 1993.