TITLE
6 PRIMARY
AND SECONDARY EDUCATION
CHAPTER
101 VOCATIONAL REHIBILITATION -
PROCEDURAL SAFEGUARDS
PART
2 FAIR HEARINGS AND
ALTERNATIVE DISPUTE RESOLUTIONS RELATED TO VOCATIONAL REHABILITATION
6.101.2.1 ISSUING AGENCY: Public
Education Department.
[6.101.2.1 NMAC - Rp, 6.101.2.1 NMAC, 9/29/2020]
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.
[6.101.2.2 NMAC - Rp, 6.101.2.2 NMAC, 9/29/2020]
6.101.2.3 STATUTORY AUTHORITY: This
regulation is adopted pursuant to Sections 22-14-8 and 22-14-12 NMSA 1978.
[6.101.2.3 NMAC - Rp, 6.101.2.3 NMAC, 9/29/2020]
6.101.2.4 DURATION: Permanent.
[6.101.2.4 NMAC - Rp, 6.101.2.4 NMAC, 9/29/2020]
6.101.2.5 EFFECTIVE DATE: September
29, 2020, unless a later date is cited at the end of a section.
[6.101.2.5 NMAC - Rp, 6.101.2.5 NMAC, 9/29/2020]
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 or request mediation of: a
determination of a counselor concerning the furnishing or denial of services; or
any action or inaction of the division of vocational rehabilitation or the
director of vocational rehabilitation. A
request for a fair hearing or mediation is to be construed liberally to allow a
client to seek redress for DVR decisions that affect their case.
[6.101.2.6 NMAC - Rp, 6.101.2.6 NMAC, 9/29/2020]
6.101.2.7 DEFINITIONS:
A. "Client assistance program” means the independent private or public agency designated
to:
(1) advise and inform applicants for and recipients of vocational
rehabilitation services of services and benefits available under the federal Rehabilitation
Act of 1973;
(2) assist and advocate for applicants
for and recipients of vocational rehabilitation services in their relationships
with projects, programs, and community rehabilitation programs providing
services under the Rehabilitation Act of 1973; and
(3) inform individuals with disabilities in New Mexico, especially
individuals with disabilities who traditionally have been unserved or
underserved by vocational rehabilitation
programs, of the services and benefits available to them under the federal Rehabilitation
Act of 1973 and Title I of the federal Americans with Disabilities Act of 1990.
B. “Division of vocational rehabilitation" or “DVR” means the division of
vocational rehabilitation.
C. "Fair hearing" means an agency proceeding
in which a person's rights and duties are decided after notice and an
opportunity to be heard.
D. "Mediation" means the act or process of using
an independent third party to act as a mediator, intermediary, or conciliator
to assist persons or parties in settling differences or disputes prior to
pursuing formal administrative or other legal remedies.
[6.101.2.7 NMAC - Rp, 6.101.2.7 NMAC, 9/29/2020]
6.101.2.8 CLIENT ASSISTANCE PROGRAM: DVR
shall inform applicants for and recipients of vocational rehabilitation
services, or their representatives, of the availability and purpose of a
designated client assistance program including:
A. information
on how to contact the client assistance program and obtain their assistance;
and
B. the
client assistance program’s obligation to provide assistance in informing and
advising all applicants for and recipients of vocational rehabilitation
services of all benefits and services available under vocational rehabilitation
programs.
[6.101.2.8 NMAC - Rp, 6.101.2.8 NMAC, 9/29/2020]
6.101.2.9 FAIR HEARING:
A. Requesting
a fair hearing. A request for
hearing shall be made to the DVR director. A hearing request should indicate the
contested decision and the counselor assigned to the case. A hearing request shall be made within 45 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 within 60 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.
D. 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.
E. 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; and
(8) make a decision based upon the facts presented at the
hearing, the provisions of the approved state plan, the federal Rehabilitation
Act of 1973 and accompanying federal regulations, and consistent state
regulations and policies, the manual of operating procedures, and good
rehabilitation practice.
F. Decision
of hearing officer. The hearing officer shall issue a written
decision within 30 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. A decision by a hearing officer shall be final
unless a party brings civil action under Subsection I of 6.101.2.9 NMAC.
G. Review
by director. The director of DVR may not overturn a hearing
officer's decision.
H. 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.
I. Civil
action. Any party aggrieved by a final decision
described in section Subsection F of 6.101.2.9 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 the
amount in controversy. In any action
brought under this subparagraph, the court shall:
(1) receive the records relating to the hearing and the records
relating to the state review, if applicable;
(2) hear additional evidence at the request of the party to the
action; and
(3) base the decision of the court on the preponderance of the evidence
and shall grant such relief as the court determines to be appropriate.
[6.101.2.9 NMAC - Rp, 6.101.2.9 NMAC, 9/29/2020]
6.101.2.10 ALTERNATIVE DISPUTE RESOLUTIONS:
A. Requesting mediation. A request for a
mediation proceeding shall be made to the director of DVR. The request shall indicate the contested
decision and the counselor assigned to the case. The request shall be made within 45 days of
the disputed decision.
B. Appointing
a mediator. A qualified and
impartial mediator shall be appointed on a random basis or by agreement between
the client and the DVR director. The
selection of a mediator shall be made from a pool of qualified mediators
established jointly by the state rehabilitation advisory council and the DVR director.
The mediator shall not be an employee of
DVR.
C. Time of mediation. The mediation shall be held within 60 days
from the date of the request for mediation. The time limit may be extended by the mediator
upon the request of either party, for good cause shown. The time limit may also be extended upon
agreement of both parties.
D. Mediation procedures. Mediations shall be scheduled and conducted in
a timely manner, and held in a location and manner that is convenient to the
parties to the dispute.
(1) During
mediation processes, applicants for and recipients of vocational rehabilitation
services may be represented by counsel or another advocate of their selection;
(2) The
applicant for or recipient of vocational rehabilitation services, or their
representative, shall have opportunity during the mediation to submit evidence
or other information in support of their position;
(3) Either
party may terminate mediation at any point in the mediation process. If mediation is terminated, either party may
pursue resolution through an impartial hearing, pursuant to 6.101.2.9 NMAC;
(4) Discussions
that occur during a mediation process shall be kept confidential and may not be
used as evidence in any subsequent fair hearing or civil proceeding. Parties to a mediation process may be required
to sign a confidentiality pledge prior to the commencement of the process;
(5) An
agreement reached by the parties to the dispute in mediation shall be described
in a written mediation agreement that is developed by the parties with the
assistance of the mediator, and signed by both parties. Copies of the agreement shall be mailed to
both parties; and
(6) DVR
shall pay the costs of mediation, except that DVR shall not be required to pay
for the costs related to the representation of an applicant for or recipient of
vocational rehabilitation services.
E. Duties of mediator. The mediator shall:
(1) schedule the mediation session(s);
(2) regulate the course and conduct of the mediation; and
(3) assure that all properly raised and relevant issues are
considered.
F. Provision of services pending appeal. Pending resolution through mediation, 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.
[6.101.2.10 NMAC - Rp, 6.101.2.10 NMAC, 9/29/2020]
History OF 6.101.2 NMAC:
6.101.2 NMAC, Fair Hearings Related to Vocational Rehabilitation , filed 12/31/1998,
was repealed and replaced by 6.101.2 NMAC, Fair Hearings and Alternative
Dispute Resolutions Related to Vocational
Rehabilitation, effective 9/29/2020.