Sec. 13a.11.07.03. Appeal Hearing Procedures

A. Assistance to Applicants and Eligible Individuals.

(1) The counselor shall inform all applicants and eligible individuals of the right to request an appeal hearing, including the name and address of the Director of the Division, at the time of application, when the individualized plan for employment or independent living plan is developed, and upon reduction, suspension, or cessation of services.

(2) Division employees shall assist an applicant or eligible individual in exercising the appeal rights under this regulation that include:

(a) Assistance in writing the request for an appeal hearing;

(b) Advising the individual of the various stages of the appeal process;

(c) Advising the individual about formal mediation; and

(d) Providing information regarding services available through the Client Assistance Program.

B. Requesting an Appeal Hearing.

(1) A request for an appeal hearing shall be filed within 60 days of receiving notice of the counselor's determination.

(2) The appeal shall be in writing and signed by the applicant or eligible individual or the individual's representative.

(3) The appeal shall clearly identify the action appealed and contain a brief statement of the reasons for the appeal and the action that the applicant or eligible individual requests the Division to take.

(4) The written appeal shall be mailed or delivered to the Director. The Director shall acknowledge in writing the receipt of the appeal.

(5) Unless the applicant or eligible individual, or the authorized representative of the applicant or eligible individual, as appropriate, requests that the appeal hearing be open to the public, the appeal hearing shall be closed to the public.

C. Formal Mediation. The Division shall assure that formal mediation is available once an appeal hearing has been requested. The following requirements apply:

(1) Mediation is voluntary on the part of both parties;

(2) Mediation shall be scheduled:

(a) In a timely manner at a place convenient to both parties, and

(b) So that it will not delay the scheduled appeal hearing;

(3) Mediation shall be conducted by a qualified and impartial mediator trained in effective mediation techniques;

(4) During mediation, both parties may submit evidence and information which supports their positions;

(5) During mediation, the applicant or eligible individual may be represented by a person selected by the applicant or eligible individual;

(6) Any agreement reached through mediation shall be documented in a written mediation agreement;

(7) Discussions occurring during the mediation process shall be confidential and may not be used as evidence in any subsequent appeal hearing or civil proceedings; and

(8) The parties to the mediation process may be required to sign a confidentiality pledge before the beginning of the mediation process.

D. Delegation to Hearing Officer.

(1) The Director shall delegate a request for an appeal hearing to the Office of Administrative Hearings in accordance with State Government Article, §10-205, Annotated Code of Maryland, to conduct the hearing and to issue a final decision to the Director and to the applicant or eligible individual.

(2) The appeal hearing shall be conducted by an administrative law judge within the Office of Administrative Hearings pursuant to State Government Article, Title 9, Subtitle 16, Annotated Code of Maryland.

(3) The State Rehabilitation Council and the Division shall jointly identify qualified impartial hearing officers from administrative law judges within the Office of Administrative Hearings.

(4) The hearing officer shall:

(a) Hold the hearing within 60 days of the Division's receipt of the request for an appeal hearing, unless the parties jointly agree to a delay;

(b) Conduct the hearing in accordance with the Rules of Procedure of the Office of Administrative Hearings, COMAR 28.02.01; and

(c) Submit in writing to the applicant or eligible individual or the individual's representative and to the Director, within 30 days of the conclusion of the hearing:

(i) Findings of fact and conclusions of law and a final decision affirming, reversing, or modifying the determination being appealed; and

(ii) A statement of the individual's right of review of the final decision.

E. Proof.

(1) In an appeal of a counselor determination that an individual is ineligible for vocational rehabilitation services because the individual is incapable of benefiting from vocational rehabilitation services in terms of an employment outcome due to the severity of the disability, the Division has the burden of proof by clear and convincing evidence that the individual is incapable of benefiting from vocational rehabilitation services in terms of an employment outcome.

(2) In all other matters, the individual has the burden of proof by a preponderance of the evidence.

F. Prohibition of Ex Parte Communication. The hearing officer and any Division employee authorized to participate in the appeal process may not communicate outside the presence of the individual or the individual's authorized representative with any person not authorized to participate in the appeal process regarding any issue of fact or law in the case. If the hearing officer or any employee involved in the appeal process becomes personally aware of a prohibited communication, that person shall follow the procedures set forth in State Government Article, §10-219(b), Annotated Code of Maryland, concerning these communications.

G. Final Decision. The final decision shall be promptly implemented.

H. Appeal Rights.

(1) A final decision of the administrative law judge shall include a written statement of the individual's right of review which is a civil action in either the State circuit court or in the federal district court.

(2) The final decision shall be implemented pending any review by any court.

I. File of Final Decisions. The Director shall maintain a separate file of final decisions issued after appeal hearings that are available for public inspection. Before placing these decisions in the public inspection file, the Director shall delete any names or references in the body of the decision that would allow identification of any applicant or eligible individual.

J. Accommodations. The Division or hearing officer shall provide reasonable accommodations for an individual who requires assistance to exercise the individual's rights under this regulation.

K. The Division may not suspend, reduce, or terminate services being provided under an individualized plan for employment or independent living plan, unless the individual so requests, pending a final determination of an impartial hearing or other final resolution, unless these services have been obtained through fraud, collusion, or criminal conduct on the part of the individual.