No. 40591 (New Rule): Rule R993-100. Authority, Purpose and Administrative Review

(New Rule)

DAR File No.: 40591
Filed: 07/07/2016 05:23:36 PM

RULE ANALYSIS

Purpose of the rule or reason for the change:

The purpose of this rule is to comply with H.B. 325 which was passed during the 2016 General Session and which moves the Utah State Office of Rehabilitation (USOR) to the Department of Workforce Services (DWS).

Summary of the rule or change:

This rule explains USOR's purpose and the authority under which the rules for Title R993 are proposed. The rule also provides for an appeal procedure in the event an applicant or client disagrees with a decision made by USOR. While some of the language has changed, there is no substantive change to current rules or practice. USOR previously contracted with mediators and Administrative Law Judges (ALJs) in the event of a dispute. Those services will now be provided by mediators and ALJs who work for DWS. This proposed rule explains the hearing procedure in keeping with the Utah Administrative Procedures Act.

Statutory or constitutional authorization for this rule:

• Section 35A-1-303
• Section 35A-1-104
• Section 35A-13-102

Anticipated cost or savings to:

the state budget:

This program is primarily funded by the federal government, and while there is state money, there are no costs or savings to the state budget from this new rule. This rule merely moves USOR from Education to DWS. Any costs incurred are already included in the USOR budget.

local governments:

This program is funded by state and federal government. There are no costs or savings to any local government from this new rule. This rule merely moves USOR from Education to DWS. Any costs for this program are already included in the USOR budget.

small businesses:

This program is funded by state and federal government. There are no costs or savings to any small businesses from this new rule. This rule merely moves USOR from Education to DWS. Any costs are already included in the USOR budget. There are no compliance costs associated with this rule.

persons other than small businesses, businesses, or local governmental entities:

There are no costs or savings for persons other than small businesses, businesses, or local government entities as this proposed change merely moves USOR's current rules from under Education to be under DWS, as per H.B. 325 (2016).

Compliance costs for affected persons:

There are no compliance costs for any affected person as this proposed change merely moves USOR's current rules from under Education to be under DWS, as per H.B. 325 (2016). The appeals process is completely without cost to any person, business, or government. Any costs of providing these services are already included in current funding.

Comments by the department head on the fiscal impact the rule may have on businesses:

There are no compliance costs associated with this change. There are no fees associated with this change. There will be no cost to anyone to comply with these changes. There will be no fiscal impact on any business. These changes will have no impact on any employer's contribution tax rate.

Jon Pierpont, Executive Director

The full text of this rule may be inspected, during regular business hours, at the Office of Administrative Rules, or at:

Workforce Services
Rehabilitation
140 E 300 S
SALT LAKE CITY, UT 84111-2333

Direct questions regarding this rule to:

• Suzan Pixton at the above address, by phone at 801-526-9645, by FAX at 801-526-9211, or by Internet E-mail at [e-mail]

Interested persons may present their views on this rule by submitting written comments to the address above no later than 5:00 p.m. on:

08/31/2016

This rule may become effective on:

09/07/2016

Authorized by:

Jon Pierpont, Executive Director

RULE TEXT

R993. Workforce Services, Rehabilitation.

R993-100. Authority, Purpose and Administrative Review.

R993-100-101. Authority and Purpose.

(1) This rule is authorized by Sections 35A-1-303 and 35A-13-102.

(2) The purpose of this rule is to specify standards and procedures for resolution and adjudication of disputes under the Vocational Rehabilitation Act.

 

R993-100-102. Review by the Field Service Director.

(1) If an applicant or client disagrees with any decision made by a vocation rehabilitation (VR) counselor or supervisor he or she may request the decision be reviewed by the Field Service Director under which the disputed determination was made. The request for review must be filed within 30 days of the decision to be reviewed. The request for review must be made in writing and must:

(a) be prepared by the applicant/client or his or her designated representative;

(b) include the name and address of the individual requesting the review;

(c) include the name of the VR counselor or supervisor whose decision is to be reviewed;

(d) describe the decision or decisions to be reviewed in sufficient detail to inform the USOR of the nature and consequences of the decision;

(e) describe the action or resolution desired; and

(f) be signed and dated by the applicant /client or his or her representative.

(2) This process may not be used to delay mediation or an impartial hearing. An applicant/client can choose not to participate in the review process by filing a request for mediation or an impartial hearing at any time. If such a request is filed, the Field Service Director review will end however, the Field Service Director may complete a review summary to be used at later stages of the appeal, if any.

(3) The Field Service Director will conduct an investigation which will include reviewing the applicant/clients record, communication with the applicant/client and relevant USOR staff.

(4) The Field Service Director will issue a written decision within 15 days of receipt of the request for review. The decision will include appeal rights, list a summary of all evidence reviewed, explain the findings of the investigation, and the action to be taken.

 

R993-100-103. Mediation.

(1) At any point during or after the review process as provided in R993-100-102 an applicant/client may request mediation. A request for mediation does not waive his or her rights to an impartial hearing. The request for mediation must be made within 30 days of the date of the last decision made, whether by the VR, the supervisor, or the Field Service Director. A request for mediation must be made prior to the beginning of an impartial hearing by an Administrative Law Judge. A request for mediation must be in writing, filed with the Division Director, and:

(a) be prepared by the applicant/client or his or her designated representative;

(b) include the name and address of the individual requesting the review;

(c) include the name of the VR counselor or supervisor whose decision is to be reviewed;

(d) describe the decision or decisions to be reviewed in sufficient detail to inform the USOR of the nature and consequences of the decision;

(e) describe the action or resolution desired; and

(f) be signed and dated by the applicant /client or his or her representative.

(2) The mediation cannot be used to delay the right of the applicant/client to an impartial hearing and must be conducted by a qualified and impartial mediator in the Adjudication and Appeals Division of the Department of Workforce Services.

(3) Mediation sessions will be scheduled in a timely manner and will be held by telephone unless the applicant/client requests and needs accommodation for an in-person hearing. In-person hearings will be held at the Adjudication and Appeals Division offices in Salt Lake City.

(4) Any discussions that occur during the mediation process are considered confidential and may not be used in any subsequent hearing or civil proceeding.

(5) Either party or the mediator may elect to terminate the mediation at any time. Notice of the termination will be sent to all parties. In the event mediation is terminated, either party may pursue resolution through an impartial hearing.

(6) Nothing in the mediation process precludes the parties from informally resolving the dispute prior to completion of the process.

(7) The mediation agreement will be reduced to writing. If an agreement cannot be reached, the mediator will summarize the proceedings in writing.

(8) The director may review the request for mediation and if he or she deems it appropriate to deny the request for mediation under 34 CFR 361.57 the parties will be notified in writing of the denial with instructions on how to proceed to an impartial hearing.

 

R993-100-104. The Right to a Hearing and How to Request a Hearing.

(1) A client or applicant has the right to a review of an adverse division decision or action by requesting a hearing. The request must be in writing and filed within 30 days of the agency decision being appealed, or in the event a mediation was terminated, the date of the notice of the termination. If the applicant/candidate/client requested a prior review or mediation, the request must be filed within 30 days of the decision by the Field Service Director or the mediator.

(2) Only a clear expression by the client to the effect that the client wants an opportunity to present his or her case is required.

(3) The request for a hearing can be made at the local office or the Division of Adjudication.

 

R993-100-105. How Hearings Are Conducted.

(1) Hearings are held at the state level and not at the local level.

(2) Where not inconsistent with federal law or regulation governing hearing procedure, the Department will follow the Utah Administrative Procedures Act.

(3) Hearings are conducted by an Administrative Law Judge (ALJ) in the Division of Adjudication.

(4) Hearings are scheduled as telephone hearings. Every party wishing to participate in the telephone hearing must call the Division of Adjudication before the hearing and provide a telephone number where the party can be reached at the time of the hearing. If the client fails to call in advance, as required by the notice of hearing, the appeal will be dismissed.

(5) If a client requires an in-person hearing, the client must contact an ALJ and request that the hearing be scheduled as an in-person hearing. The request should be made sufficiently in advance of the hearing so that all other parties may be given notice of the change in hearing type and the opportunity to appear in person also. Requests will only be granted if the client can show that an in-person hearing is necessary to accommodate a special need or if the ALJ deems an in-person hearing is necessary to ensure an orderly and impartial hearing which meets due process requirements. If the ALJ grants the request, all parties will be informed that the hearing will be conducted in person. Even if the hearing is scheduled as an in-person hearing, a party may elect to participate by telephone. In-person hearings are held in the offices of the Adjudication and Appeals Division unless the ALJ determines that another location is more appropriate.

(6) The Department is not responsible for any travel costs incurred by the client or any of his or her witnesses in attending an in-person hearing.

(7) The Division of Adjudication will permit collect calls from parties and their witnesses participating in telephone hearings.

 

R993-100-106. When a Client Needs an Interpreter at the Hearing and Procedure for Use of an Interpreter.

(1) If a client notifies the Department that an interpreter is needed at the time the request for hearing is made, the Department will arrange for an interpreter at no cost to the client.

(2) The ALJ will be assured that the interpreter:

(a) understands the English language; and

(b) understands the language of the client or witness for whom the interpreter will interpret.

(3) The ALJ will instruct the interpreter to interpret as accurately as possible given the communication modality.

(4) If an interpreter is needed to assist a deaf or hearing impaired party, the interpreter must be certified as provided in Rule R993-300 et seq.

(5) The interpreter will be sworn to truthfully and accurately translate all statements made, all questions asked, and all answers given.

(6) The interpreter will be instructed to translate to the client the explanation of the hearing procedures as provided by the ALJ.

 

R993-100-107. Notice of Hearing.

(1) All interested parties will be notified by mail at least 10 days prior to the hearing.

(2) Advance written notice of the hearing can be waived if the client and Department agree.

(3) The notice shall contain:

(a) the time, date, and place, or conditions of the hearing. If the hearing is to be by telephone, the notice will provide the number for the client to call and a notice that the client can call the number collect;

(b) the legal issues or reason for the hearing;

(c) the consequences of not appearing;

(d) the procedures and limitations for requesting rescheduling; and

(e) notification that the client can examine the case file prior to the hearing.

(4) If a client has designated a person or professional organization as the client's agent, notice of the hearing will be sent to that agent. It will be considered that the client has been given notice when notice is sent to the agent.

(5) When a new issue arises during the hearing or under other unusual circumstances, advance written notice may be waived, if the Department and the client agree, after a full verbal explanation of the issues and potential results.

(6) The client must notify any representatives, including counsel and witnesses, of the time and place of the hearing and make necessary arrangements for their participation.

 

R993-100-108. Hearing Procedure.

(1) Hearings are not open to the public.

(2) A client may be represented at the hearing. The client may also invite friends or relatives to attend as space permits.

(3) Representatives from the Department or other state agencies may be present.

(4) All hearings will be conducted informally and in such manner as to protect the rights of the parties. The hearing may be recorded.

(5) All issues relevant to the appeal will be considered and decided upon.

(6) The decision of the ALJ will be based solely on the testimony and evidence presented at the hearing.

(7) All parties may testify, present evidence or comment on the issues.

(8) All testimony of the parties and witnesses will be given under oath or affirmation.

(9) Any party to an impartial hearing will be given an adequate opportunity to be heard and present any pertinent evidence of probative value and to know and rebut by cross-examination or otherwise any other evidence submitted.

(10) The ALJ will direct the order of testimony and rule on the admissibility of evidence.

(11) Oral or written evidence of any nature, whether or not conforming to the legal rules of evidence including hearsay, may be accepted and will be given its proper weight.

(12) Official records of the Department, including reports submitted in connection with any program administered by the Department or other State agency may be included in the record.

(13) The ALJ may request the presentation of and may take such additional evidence as the ALJ deems necessary.

(14) The parties, with consent of the ALJ, may stipulate to the facts involved. The ALJ may decide the issues on the basis of such facts or may set the matter for hearing and take such further evidence as deemed necessary to determine the issues.

(15) The ALJ may require portions of the evidence be transcribed as necessary for rendering a decision.

(16) Unless the client requests a continuance, the decision of the ALJ will be issued within 60 days of the date on which the client requests a hearing.

(17) A decision of the ALJ which results in a reversal of the Department decision shall be complied without unnecessary delay and according to standard of provision of services procedures.

 

R993-100-109. Rescheduling or Continuance of Hearing.

(1) The ALJ may adjourn, reschedule, continue or reopen a hearing on the ALJ's own motion or on the motion of the client or the Department.

(2) If a party knows in advance of the hearing that they will be unable to proceed with or participate in the hearing on the date or time scheduled, the party must request that the hearing be rescheduled or continued to another day or time.

(a) The request must be received prior to the hearing.

(b) The request must be made orally or in writing to the ALJ who is scheduled to hear the case. If the request is not received prior to the hearing, the party must show cause for failing to make a timely request.

(c) The party making the request must show cause for the request.

(d) Normally, a party will not be granted more than one request for a continuance.

(3) The rescheduled hearing must be held within 30 days of the original hearing date.

 

R993-100-110. Default Order or Dismissal for Failure to Participate.

(1) If a hearing has been scheduled at the request of a client and the client fails to appear at or participate in the hearing, either in person or through a representative, the ALJ will, unless a continuance or rescheduling has been requested, dismiss the request for an impartial hearing.

(2) A default order will be based on the record and best evidence available at the time of the order.

 

R993-100-111. Setting Aside a Default or Dismissal and/or Reopening the Hearing After the Hearing Has Been Concluded.

(1) Any party who fails to participate personally or by authorized representative as defined may request that the default order or dismissal be set aside and a hearing or a new hearing be scheduled. If a party failed to participate in a hearing but no decision has yet been issued, the party may request that the hearing be reopened.

(2) The request must be in writing, must set forth the reason for the request and must be mailed, faxed or delivered to the ALJ or presiding officer who issued the default order or dismissal within ten days of the issuance of the default or dismissal. If the request is made after the expiration of the ten-day time limit, the party requesting reopening must show good cause for not making the request within ten days.

(3) The ALJ has the discretion to schedule a hearing to determine if a party requesting that a default order or dismissal be set aside or a reopening satisfied the requirements of this rule or may grant or deny the request on the basis of the record in the case.

(4) If a presiding officer issued the default or dismissal, the officer shall forward the request to the Division of Adjudication. The request will be assigned to an ALJ who will then determine if the party requesting that the default or dismissal be set aside or that the hearing be reopened has satisfied the requirements of this rule.

(5) The ALJ may, on his or her own motion, reschedule, continue or reopen a case if it appears necessary to take continuing jurisdiction based on a mistake as to facts or if the denial of a hearing would be an affront to fairness. An ALJ may also, on his or her own motion, set aside a default or dismissal on the same grounds.

(6) If a request to set aside the default or dismissal or a request for reopening is not granted, the ALJ will issue a decision denying the request to reopen. A copy of the decision will be given or mailed to each party, with a clear statement of the right of appeal or judicial review. A defaulted party may appeal a denial of a request to set aside a default or dismissal by following the procedure in R993-100-114. The appeal can only contest the denial of the request to set aside the default and not the underlying merits of the case. If the default or dismissal is set aside on appeal, the Executive Director or designee may rule on the merits or remand the case to an ALJ for a ruling on the merits on an additional hearing if necessary.

 

R993-100-112. What Constitutes Grounds to Set Aside a Default or Dismissal.

(1) A request to reopen or set aside for failure to participate:

(a) will be granted if the party was prevented from participating and/or appearing at the hearing due to circumstances beyond the party's control;

(b) may be granted upon such terms as are just for any of the following reasons: mistake, inadvertence, surprise, excusable neglect or any other reason justifying relief from the operation of the decision. The determination of what sorts of neglect will be considered excusable is an equitable one, taking into account all of the relevant circumstances including:

(i) the danger that the party not requesting reopening will be harmed by reopening,

(ii) the length of the delay caused by the party's failure to participate including the length of time to request reopening,

(iii) the reason for the request including whether it was within the reasonable control of the party requesting reopening,

(iv) whether the party requesting reopening acted in good faith, and

(v) whether the party was represented by another at the time of the hearing. Because they are required to know and understand Department rules, attorneys and professional representatives are held to a higher standard, and

(vi) whether based on the evidence of record and the parties' arguments or statements, setting aside the default and taking additional evidence might affect the outcome of the case.

(2) Requests to reopen or set aside are remedial in nature and thus must be liberally construed in favor of providing parties with an opportunity to be heard and present their case. Any doubt must be resolved in favor of granting reopening.

 

R993-100-113. Canceling an Appeal and Hearing.

When a client notifies the Division of Adjudication or the ALJ that the client wants to cancel the hearing and not proceed with the appeal, a decision dismissing the appeal will be issued. This decision will have the effect of upholding the Department decision. The client will have ten days in which to reinstate the appeal by filing a written request for reinstatement with the Division of Adjudication.

 

R993-100-114. Further Appeal from the Decision of the ALJ.

The decision of the ALJ will be final 30 days after issuance unless further appeal is filed. Either party has the option of appealing the decision of the ALJ to either the Executive Director or person designated by the Executive Director or to the District Court. The appeal must be filed, in writing, within 30 days of the issuance of the decision of the ALJ. If a request for a hearing is not timely filed under R993-100-104, there are no further appeal rights.

 

KEY: administrative procedures, complaint procedures

Date of Enactment or Last Substantive Amendment: 2016

Authorizing, and Implemented or Interpreted Law: 35A-1-303; 35A-13-102; 35A-1-104

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