Section 1240-05-01-.05 - ADMINISTRATIVE REVIEW IN VOCATIONAL REHABILITATION SERVICES(1) Any applicant or eligible individual, as defined in 34 C.F.R. § 361.5(14)(i), who is dissatisfied with any administrative decision made by any staff of the Designated State Unit, more specifically, the Division of Rehabilitation Services, concerning the furnishing or denial of rehabilitation services may request a review of the decision by means of an Informal Administrative Review, Mediation, or a Fair Hearing in accordance with the Federal Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 722 et seq.(2) The individual must be made aware of his/her rights as follows:(a) The right to an Informal Administrative Review(b) The right to pursue mediation(c) The availability of the Client Assistance Program (CAP)(d) The right to a formal fair hearing.(3) Notification of these rights and the availability of CAP should be given: (a) At the time of application;(b) At the time the individual is assigned to a category in Tennessee's order of selection, provided that Tennessee has established an order of selection under 34 C.F.R. § 361.36;(c) When the Individualized Plan for Employment (IPE) is developed; and(d) When services are being reduced, suspended or terminated.(4) During any appeal process (Informal Administrative Review, Mediation or Fair Hearing), the applicant or eligible individual must be advised that he/she has the right to be represented by counsel or other advocate selected by the individual and with an opportunity to submit evidence and other information that supports his/her position.(5) Continuation or Cessation of Services During Reviews and Appeals. When an applicant or eligible individual requests an Informal Administrative Review, Mediation or Fair Hearing of a decision to cease a service, there shall not be a suspension, reduction or termination of services being provided to an applicant or eligible individual, including evaluation and assessment services and Individualized Plan for Employment (IPE) development, pending an order determining the Fair Hearing, Mediation or Informal Administrative Review process unless the individual, or as appropriate, the individual's representative, so requests or the Rehabilitation Services Division has evidence that the service(s) at issue were obtained through misrepresentation, fraud, collusion or criminal conduct on the part of the individual or his/her representative.(6) An appeal of an Informal Administrative Review, Mediation or a request for a Fair Hearing will be accepted only if filed within the required time limit listed in this section, unless good cause can be shown as to why the appeal or request for a Fair Hearing could not be filed within the required time limit.(7) Informal Administrative Review. An Informal Administrative Review is an informal procedure through which the Division provides an opportunity to an applicant or eligible individual of Vocational Rehabilitation Services and/or his/her representative, to express and seek resolution for his/her dissatisfaction with an action of the Division.
(a) The individual/applicant must file a request for an Informal Administrative Review, orally or in writing, within thirty (30) calendar days of the date on the notice of the contested action.(b) Within five (5) working days of the request in 1240-05-01-.05(7)(a), except when disciplinary sanctions are imposed against the applicant/individual in a Division owned or operated facility, a supervisor shall contact the applicant/individual or as appropriate his/her representative to schedule the Informal Administrative Review. The applicant or individual or, as appropriate, his/her representative shall be informed in writing of the scheduled review date and site. When disciplinary sanctions are imposed against the applicant/individual in a Division owned or operated facility the supervisor shall contact the applicant/individual or, as appropriate, his/her representative immediately to schedule the review.(c) The Informal Administrative Review shall be held within fifteen (15) working days from the date of the original request, and within twenty-four (24) hours of the date of the receipt of notice for disciplinary sanctions in a Division owned or operated facility.(d) Informal Administrative Reviews are held by the regional supervisory staff of the Division. An Informal Administrative Review shall be conducted during regular agency working hours and located at a time and place convenient to the individual and staff.(e) The recommendation of the review shall be in writing and address all issues involved. Within ten (10) working days of the review, all parties involved in the review shall receive written notice of the recommendation.(f) Applicants and individuals can be served more quickly using the Informal Administrative Review process. However, under no circumstance should the Informal Administrative Review process be used to deny, delay, discourage, or interfere with the individual exercising his/her right to pursue Mediation or the formal Fair Hearing process. The Division shall make every effort to resolve individual complaints at the Informal Administrative Review Process level.(g) Applicants and individuals may be represented by the representative or legal counsel of his/her choosing.(8) Mediation. (a) Mediation may be requested orally or in writing at any point as a part of due process procedures prior to a formal Fair Hearing. Mediation may be requested without first completing the Informal Administrative Review. Mediation is voluntary on the part of both parties (the Division or the individual/applicant). Mediation shall not be used as a process to deny or delay the right of an individual to a Fair Hearing or any other rights. The State shall bear the cost of the Mediation process with the exception of the costs related to the representation of an applicant or eligible individual.(b) Requirements for Mediation include the following: 1. A qualified and impartial mediator as defined in 34 C.F.R. § 361.5(c)(43) must conduct the Mediation process. The applicant/individual has the right to choose the mediator, as available, from a list of mediators maintained by the Division of Rehabilitation Services.2. Mediation should be scheduled within seven (7) working days of the request for mediation, subject to availability of a suitable mediator. The actual mediation should take place within fifteen (15) working days of the request, subject to availability of a suitable mediator.3. The mediation should take place at a location convenient to all parties.4. Discussions that take place during the mediation process shall be confidential and may not be used as evidence in any subsequent due process hearing under 1240-05-01-.05(9) of these rules or civil proceeding under 1240-05-01-.05(10). The parties to the mediation process may be required to sign a confidentiality pledge prior to the commencement of the mediation process.5. Any agreement reached by the parties shall be set forth in a written mediation agreement, but if agreement is not reached, the applicant/individual has the right to proceed to a Fair Hearing.6. Applicants and individuals may be represented by the representative or legal counsel of his/her choosing.(9) Fair Hearing. (a) A Fair Hearing is a formal procedure whereby an applicant or individual who is dissatisfied with any administrative decision made by the Department of Human Services Vocational Rehabilitation Services Division staff concerning the furnishing or denial of services is provided a formal hearing by an Impartial Hearing Officer (IHO) to review the determination.(b) An individual may request a Fair Hearing orally, or by formally filing Form HS-2860 with the counselor, the regional/district/local supervisor's office, or facility administrator. The date the request was made must be documented on Form HS-2860 by Division staff.(c) The applicant/individual or his/her representative is allowed thirty (30) calendar days after the date of the Informal Administrative Review Written Recommendation or Mediation to request a Fair Hearing, subject to good cause exceptions as determined by the Commissioner/Commissioner's Designee in the Hearings and Appeals Unit.(d) When the applicant or individual elects not to utilize the Informal Administrative Review or Mediation process, the request for the Fair Hearing must be filed within thirty (30) calendar days of the notification by the Division to the applicant for, or recipient of services, of the contested action, subject to good cause exceptions as determined by the Commissioner/Commissioner's Designee in the Hearings and Appeals Unit. Time is measured from the date of the notice.(e) The requirements for the fair hearing are as follows:1. The Fair Hearing is to be conducted by an Impartial Hearing Officer (IHO) as defined in 34 C.F.R. § 361.5(c)(24) and is to be held within sixty (60) days of a request by the applicant or individual, unless informal resolution is achieved prior to the sixtieth (60th) day or the parties agree to a specific extension of time. The sixty-day (60) period begins when the request is made orally or in writing. In either event, the date that the request is made for a Fair Hearing must be documented on Form HS-2860.2. The applicant or individual or, if appropriate, the individual's representative shall be afforded an opportunity to present evidence, information, and witnesses to the Impartial Hearing Officer; to be represented by counsel or other appropriate advocate; and to examine/cross examine all witnesses and other relevant sources of information and evidence.3. The Impartial Hearing Officer shall make a decision based on the provisions of the approved State Plan and the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 701 et seq.; Federal Vocational Rehabilitation regulations at 34 C.F.R. §§ 361 et seq. and State Regulations; and policies that are consistent with the Federal requirements. The Impartial Hearing Officer shall provide the decision in writing, to the applicant or individual, or as appropriate to his/her representative, and to the Assistant Commissioner of the Rehabilitation Services Division. The Impartial Hearing Officer's decision, including findings and grounds for the decision, shall be entered within thirty (30) calendar days of the date of the hearing.4. The Division of Rehabilitation Services shall maintain a list of qualified Impartial Hearing Officers who are knowledgeable in law (including regulations) relating to the provision of Vocational Rehabilitation services. The names of the Impartial Hearing Officers will be identified jointly by the Designated State Unit, as defined in 34 C.F.R. § 361.5(13), more specifically, the Rehabilitation Services Division and members of the State Rehabilitation Council (SRC).5. The selection of the Impartial Hearing Officer to hear a particular case will be done on a random basis by the Commissioner's Designee for Hearings and Appeals.6. The Impartial Hearing Officer's decision is final, except either party that is dissatisfied with the decision of the Impartial Hearing Officer may request, in writing, a review of the decision of the Impartial Hearing Officer within twenty (20) calendar days after entry and mailing of the decision. If the twentieth (20th) day falls on a weekend or holiday, the request must be filed by the following workday. The Commissioner, or the Commissioner's Designee in the Department of Human Services' Hearings and Appeals Unit will conduct the review of the decision of the Impartial Hearing Officer. The Commissioner cannot delegate the responsibility to make the independent final decision to any officer or employee of the Designated State Unit, as defined in 34 C.F.R. § 361.5(13), more specifically the Rehabilitation Services Division, including the Assistant Commissioner of the Rehabilitation Services. During the Commissioner/Commissioner's Designee's review, each party shall be provided an opportunity for submission of additional evidence and information relevant to a final decision concerning the matter under review.7. The Commissioner/Commissioner's Designee in the Hearings and Appeals Unit may not overturn or modify the decision, or part of a decision, of an Impartial Hearing Officer that supports the position of the individual unless it is concluded that, based on clear and convincing evidence, the decision of the Impartial Hearing Officer is clearly erroneous because it is contrary to the approved State Plan; the Rehabilitation Act, as amended, 29 U.S.C. §§ 701 et seq.; Federal Vocational Rehabilitation Regulations; State Regulations or policies that are consistent with Federal requirements identified in Title I of the Rehabilitation Act, as amended.8. Within thirty (30) days of the individual's request for administrative review of the Impartial Hearing Officer's decision as described in 1240-05-01-.05(9)(e) 6., the Commissioner/Commissioner's Designee in the Hearings and Appeals Unit, shall render an independent final decision following a review of the entire hearing record and provide a full report in writing of the decision, including the findings and the statutory regulation or policy grounds for the decision to the applicant or individual or, if appropriate, the individual's representative and to the Vocational Rehabilitation Division staff involved in the Fair Hearing.9. Reasonable time extensions may be provided for good cause shown at the request of a party or at the request of both parties.10. The Impartial Hearing Officer's decision will be the final agency decision, if there is not a request for administrative review of the Impartial Hearing Officer's decision to the Commissioner/Commissioner's Designee within twenty (20) calendar days of the entry and mailing of the Impartial Hearing Officer's decision as provided in 1240-05-01-.05(9)(e) 6. above.(10) Petition for Judicial Review in Chancery Court. (a) Any party who is aggrieved by a decision of the Impartial Hearing Officer may file a petition for judicial review in Chancery Court under T.C.A. § 4-5-322 and 29 U.S.C. § 722(j): 1. Within sixty (60) days after the Impartial Hearing Officer's decision is issued; or2. Within sixty (60) days of the entry and mailing of the Commissioner/Commissioner's Designee's independent final administrative review decision of the Impartial Hearing Officer's decision, where the individual sought review of the Impartial Hearing Officer's decision as provided in 1240-05-01-.05(9)(e) 6.(b) The decision of the Impartial Hearing Officer, or if reviewed, the independent final administrative review decision of the Commissioner/Commissioner's Designee shall be implemented regardless of whether a party has filed a petition for judicial review in Chancery Court as provided in 1240-05-01-.05(10)(a) above unless the final order has been stayed pursuant to a Petition for Stay.(11) Vocational Rehabilitation Services fair hearings shall be conducted in conformity with the Federal Rehabilitation Act, 29 USCA § 722(c), 34 C.F.R. § 361.57, and the Tennessee Uniform Administrative Procedures Act, as amended, T.C.A. §§ 4-5-301 et seq. State Rule 1240-05-01-.05 shall govern the procedures for review of service decisions in the Vocational Rehabilitation Program. Any conflict between the Department of Human Services rules governing contested case proceedings and the Tennessee Uniform Administrative Procedures Act, as amended, shall be controlled by the Department of Human Services Rules at 1240-05-01-.05.Tenn. Comp. R. & Regs. 1240-05-01-.05
Original rule filed September 30, 2004; effective December 14, 2004. Amendments filed November 7, 2022; effective 2/5/2023.Authority: T.C.A. §§ 4-5-105, 49-11-601 et seq., and 71-1-105; 29 U.S.C. §§ 701 et seq., 29 U.S.C. § 705, 29 U.S.C. §§ 720 et seq., and 29 U.S.C. § 722(c); and 34 C.F.R. § 361.5 and 34 C.F.R. § 361.57.