N.Y. Comp. Codes R. & Regs. tit. 8 § 247.2

Current through Register Vol. 46, No. 45, November 2, 2024

Section 247.2 - Administrative review, mediation and impartial hearing

(a) This section governs the conduct of the administrative review and impartial hearing process in the Office of Vocational and Educational Services for Individuals with Disabilities, through which individuals with disabilities can, upon request, obtain mediation or a review of actions taken by the Office of Vocational and Educational Services for Individuals with Disabilities.

(b) Individual rights in connection with appeals process. All individuals shall have the right to request a prompt review or mediation concerning determinations made by agency personnel that affect the provision of vocational rehabilitation services to applicants or eligible individuals.

(c) Notification of policy. The policy established by this Part shall be communicated through appropriate modes of communication to all applicants and eligible individuals through at least the following means:

(1) Written and other types of material identifying the individual's rights and obligations, and containing instructions for initiating a review or seeking mediation, shall be given to all individuals who apply for service and shall be available without asking at all field office waiting areas.

(2) A statement of individual appeal rights shall be included on, or attached to, the following forms: the application for service, individualized plan for employment, and letters sent to individuals upon case closure.

(3) At the initial meeting with the interviewer and counselor, and at the time of potential impasse situations, individuals shall be counselled about their rights and the actions necessary to begin the review process. They shall be provided information about the manner in which an impartial hearing officer will be selected, and the names and addresses of persons with whom appeals may be filed.

(d) Right to representation.

(1) Any individual who requests a review or mediation under these regulations shall be notified in writing of the right to be accompanied and represented by an authorized representative of his or her choice, including a parent, guardian, other family member, or advocate, and shall be notified of the availability of the Client Assistance Program. All expenses caused by such representations, including legal fees, shall be the responsibility of the individual.

(2) If the individual elects to be represented by another person during a review, the individual shall so inform the agency, in writing. The individual may withdraw authorization for representation at any time by giving written notification to the agency of such withdrawal.

(3) The individual may be accompanied at a review or hearing by another person, without prior written notification, if that person does not act as representative. The reviewer or hearing officer shall have the right to exclude any person whose presence is disruptive to the review or hearing.

(e) Use of individual's record of service. The individual or representative may review the record of service, either prior to, or at an administrative review, mediation or impartial hearing, subject to the limitations of section 247.4 of this Part.

(f) Time limitations.

(1) Computation of time. Computation of any period of time to which reference is made in this Part shall begin on the first day following the day on which the act which initiates the action occurs. The term days shall mean calendar days.

(2) Extension of time. It shall be within the discretion of the reviewer or the hearing officer, for good cause shown, or with the consent of the parties, to extend any time limit prescribed by this Part. All requests for extensions shall be made in writing by the individual, before the expiration of the period originally prescribed or as previously extended, except that a request for extension of the time limitation for requesting a review may be submitted after the expiration of the prescribed period.

(g) Steps in the review process.

(1) An individual's appeal may proceed in the following sequence:

(i) mediation;

(ii) initial review conference;

(iii) administrative review; and

(iv) impartial hearing.

(2) No earlier level of review need be completed before resort to an impartial hearing or mediation, and a request for review or mediation shall begin the time for conducting the hearing unless the parties agree to a specific time extension.

(h) Modes of communication. An interpreter fluent in the dominant language of the individual or a person skilled in communicating with individuals with disabilities who rely on special modes of communication shall be provided, at agency expense, at the mediation, initial review conference, administrative review, and at an impartial hearing, when necessary.

(i) Other expenses. Transportation for an individual to attend a mediation, initial review conference, administrative review or hearing shall be provided at agency expense usually only within New York State. When a person is receiving services under an individualized plan for employment outside the State the agency may pay for transportation from that service site to the hearing site. The appropriate transportation carrier and class for each individual shall be determined by the agency. Lodging and other incidental expenses related to the individual's attendance at a mediation, review or hearing shall not be provided at agency expense.

(j) Status quo. Pending a mediation agreement or a final determination of the impartial hearing, no suspension, reduction or termination of services currently being provided, including evaluation and assessment services and services under an individualized plan for employment, shall be instituted by the agency unless the individual or the individual's representative so requests or the services have been obtained through misrepresentation, fraud, collusion, or criminal conduct on the part of the individual or the individual's representative.

N.Y. Comp. Codes R. & Regs. Tit. 8 § 247.2