DAR File No. 31838

Education, Rehabilitation

R280-150

Adjudicative Proceedings Under the Vocational Rehabilitation Act

NOTICE OF PROPOSED RULE

DAR File No.: 31838
Filed: 08/14/2008, 03:47
Received by: NL

RULE ANALYSIS

Purpose of the rule or reason for the change:

This rule is repealed and reenacted to eliminate duplicate processes and to specify standards and procedures for adjudication of disputes under the Vocational Rehabilitation Act.

Summary of the rule or change:

The reenacted rule removes Sections R280-150-3 through R280-150-15 and adopts and incorporates by reference procedures for adjudicative proceedings consistent with 34 CFR 361.57, 2007 edition.

State statutory or constitutional authorization for this rule:

Section 53A-24-103 and Subsection 53A-1-401(3)

This rule or change incorporates by reference the following material:

34 CFR 361.57, 2007 edition

Anticipated cost or savings to:

the state budget:

There are no anticipated costs or savings to the state budget. The reenacted rule incorporates by reference the federal process for adjudicative proceedings under which the State Office of Rehabilitation operates.

local governments:

There are no anticipated costs or savings to local government entities. The reenacted rule incorporates by reference the process for adjudicative proceedings under which the State Office of Rehabilitation will operate.

small businesses and persons other than businesses:

There are no anticipated costs or savings to small businesses and persons other than businesses. The reenacted rule incorporates by reference the the federal process for adjudicative proceedings under which the State Office of Rehabilitation operates.

Compliance costs for affected persons:

There are no compliance costs for affected persons. The reenacted rule incorporates by reference the federal process for adjudicative proceedings under which the State Office of Rehabilitation operates.

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

I have reviewed this rule and I see no fiscal impact on businesses. Patti Harrington, State Superintendent of Public Instruction

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

Education
Rehabilitation
250 E 500 S
SALT LAKE CITY UT 84111-3272

Direct questions regarding this rule to:

Carol Lear at the above address, by phone at 801-538-7835, by FAX at 801-538-7768, or by Internet E-mail at carol.lear@schools.utah.gov

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:

10/01/2008

This rule may become effective on:

10/08/2008

Authorized by:

Carol Lear, Director, School Law and Legislation

R280. Education, Rehabilitation.

R280-150. Adjudicative Proceedings Under the Vocational Rehabilitation Act.

[R280-150-1. Definitions.

A. This rule incorporates by reference Section 63-46b-2, U.C.A. 1953.

B. "Board" means the Utah State Board of Education.

C. "Presiding officer" means, in addition to the definition of 63-46b-2(1)(h), any person designated by the Division to serve as the presiding officer.

D. "Director" means the Director of the Division of Rehabilitation Services or the Director of the Division of Services for the Visually Handicapped.

E. "Division" means the Division of Rehabilitation Services or the Director of the Division of Services for the Visually Handicapped.

F. "Fair hearing" means the requirement for adjudicative proceedings under Section 63-46b-4, U.C.A. 1953, and the Vocational Rehabilitation Act.

 

R280-150-2. Authority and Purpose.

A. This rule is authorized by Section 63-46b-1(5), U.C.A. 1953, which allows the Board to promulgate rules, which are in conformity with Chapter 46b, Title 63, affecting or governing its adjudicative proceedings.

B. The purpose of this rule is to specify how adjudicative proceedings are conducted under state and federal Vocational Rehabilitation Acts administered by the Board.

 

R280-150-3. Initial Determination.

A. Initial action taken to determine the legal rights, duties, privileges, immunities, or other legal interests of persons under state and federal Vocational Rehabilitation Acts is comprised of a decision and resolution of concerns regarding the decision.

B. (1) any applicant or client unable to resolve concerns surrounding a decision with his or her counselor may ask the appropriate District Director to resolve his or her concerns regarding the decision. A member of the supervisory staff of the agency is assigned to re-examine the counselor's decision. The request for review shall describe the decision and facts and reasons for re-examination. The supervisory staff member shall not have participated in making the decision in question.

(2) a written decision regarding the issues in question shall be mailed to the party making the request and other appropriate persons no later than 10 days following the conclusion of the re-examination. The decision shall include notice to the party of the right to administrative review of the decision under the Utah Administrative Procedures Act and this rule.

 

R280-150-4. Commencement of Adjudicative Proceedings.

A. This rule incorporates by reference Section 63-46b-3, U.C.A. 1953.

B. Any party to an initial determination made under this rule may initiate a fair hearing on the matter by sending to the Director a written request for a hearing which contains the information required by Section 63-46b-3(3)(a). The request must be received by the Director within 30 days of the date on which a decision rendered on the matter under R280-150-3(B)(2) was sent to the party making the request.

C. The Director may initiate a fair hearing by filing notice of the action as required by Section 63-46b-3(2)(a), U.C.A. 1953 and relevant federal law.

D. Any party may be represented by counsel or by another person of his or her choice at any time in any fair hearing.

 

R280-150-5. Designation of Adjudicative Proceedings as Formal or Informal.

A. This rule incorporates by reference Section 63-46b-4, U.C.A. 1953.

B. All fair hearings commenced under this rule are initially designated as informal. The presiding officer designated for the hearing may convert a formal hearing to informal and vice versa under Section 63-46b-4(3), U.C.A. 1953.

C. All informal fair hearings shall be conducted as informal hearings on the record.

 

R280-150-6. Procedures for Informal Fair Hearings.

A. This rule incorporates by reference Section 63-46b-5, U.C.A. 1953.

B. No answer is required of a respondent in an informal fair hearing. The respondent may file with the presiding officer a response containing the information required by Section 63-46b-6, U.C.A. 1953 and any evidence related to the matter.

C. The Division shall only hold a hearing if a party to the matter requests a hearing:

(1) under R280-150-4(B); or

(2) within 30 days of receiving notice issued under R280-150-4(C).

The party requesting the hearing shall be notified in writing within ten working days of when the request is received as to the date, time, and place of the hearing.

D. Intervention is prohibited unless required by a federal or state statute applicable to the matter.

E. A record of all aspects of the informal fair hearing shall be maintained.

 

R280-150-7. Procedures for Formal Hearings - Responsive Pleadings.

A. This rule incorporates by reference Section 63-46b-6, U.C.A. 1953.

B. The requirement that a respondent must respond within 20 days may be waived by the presiding officer for good cause or may be changed to meet the requirements of federal law applicable to the matter.

C. The response shall be filed in a manner that provides for the information required by Section 63-46b-6, U.C.A. 1953.

D. The presiding officer may permit or require any pleadings which will provide for the fair and efficient conduct of the fair hearing.

 

R280-150-8. Procedures for Formal Fair Hearings - Discovery, Subpoenas, Motions, and Prehearing Conferences.

A. This rule incorporates by reference Section 63-46b-7, U.C.A. 1953.

B. (1) The presiding officer may, upon written notice to all parties of record, hold a prehearing conference for the purpose of:

(a) formulating or simplifying the issues;

(b) obtaining admissions of fact and of documents which will avoid unnecessary proof;

(c) arranging for the exchange of proposed exhibits or prepared expert testimony and procedure at the hearing;

(d) agreeing to other matters that may expedite the orderly conduct of the proceedings or the settlement; or

(e) obtaining a settlement of the matter.

(2) agreements reached during a prehearing conference are recorded in an appropriate order.

C. The presiding officer may permit or require parties to file motions, other pleadings, affidavits, briefs, or other materials relevant to the action in order to provide for the fair and efficient conduct of the adjudicative proceeding.

 

R280-150-9. Procedure for Formal Fair Hearings - Hearings Procedure.

A. This rule incorporates by reference Section 63-46b-8, U.C.A. 1953.

B. The party requesting the hearing shall be notified in writing within ten working days of when the request is received as to the date, time, and place of the hearing.

 

R280-150-10. Procedure for Formal Fair Hearings - Intervention.

This rule incorporates by reference Section 63-46b-9, U.C.A. 1953.

 

R280-150-11. Procedures for Formal Fair Hearings - Orders.

A. This rule incorporates by reference Section 63-46b-10, U.C.A. 1953.

B. The written decision shall be mailed to all parties within 30 days of the date of the hearing.

 

R280-150-12. Default.

A. This rule incorporates by reference section 63-46b-11, U.C.A. 1953.

B. A party to an informal fair hearing is deemed to have failed to participate in the adjudicative proceeding if:

(1) that party does not attend, either in person or by representation, any hearing, conference, or other meeting on the matter at which his or her presence is requested or which that party has requested, or

(2) that party does not respond, when requested, to any correspondence or communication made in connection with the matter by the presiding officer, Director, or the Board.

 

R280-150-13. Reconsideration.

A. This rule incorporates by reference Section 63-46b-13, U.C.A. 1953, except that, in accordance with section 102 of the federal Vocational Rehabilitation Act, the time within which the request for reconsideration must be filed is 20 days.

B. (1) the Director may reconsider any fair hearing on his or her own initiative. All parties are notified within 20 days of the mailing of the presiding officer's decision of the Director's intent to reconsider.

C. The Director issues a decision on the matter within 30 days after the filing of the request for, or sending the notice of, reconsideration. The review is based on the record of the fair hearing.

D. Enforcement of a presiding officer's order is stayed during the reconsideration period.

 

R280-150-14. Judicial Review.

A. This rule incorporates by reference Section 63-46b-18, U.C.A. 1953.

B. A party requesting a stay of its order or temporary remedy during the pendency of judicial review shall petition the Director for such. The Director shall within a reasonable time issue an order either granting or denying the stay. The order shall state the reasons for the grant or denial.

 

R280-150-15. Declaratory Orders.

A. This rule incorporates by reference Section 63-46b-21, U.C.A. 1953.

B. A request for a declaratory order shall be filed on a form, Request for a Declaratory Order, provided by the Division which is hereby incorporated by reference, or submitted in writing in a manner that contains all the information on the form. If it appears to the Director upon the filing of the request that the matters requested in the petition are not within the jurisdiction or adjudicative powers of the Division, the Director need not take further action on the matter. It shall notify the petitioner of the reasons why the request is denied and of the procedures to obtain reconsideration of the decision. If it appears to the Director upon the filing of the request that the matters requested in the petition are within the jurisdiction or adjudicative power of the Division, the Director shall appoint a presiding officer for the matter.

C. The presiding officer has the discretion to issue an order making any provision of Sections 63-46b-4 through 63-46b-13, U.C.A. 1953, apply to the proceeding to issue the declaratory order. The presiding officer shall conduct the proceeding in a fair and efficient manner.

D. The Director shall not issue a declaratory order in the following instances:

(1) issuance of an order is not under circumstances in which both the public interest and the interests of the parties are protected;

(2) the critical facts are not clear and may be altered by subsequent events;

(3) the party making the request is unable to show real risk will be confronted if the intended course of conduct is taken.

E. Parties which meet the requirements of Section 63-46b-10, U.C.A. 1953, may intervene in a declaratory action upon filing a petition to intervene within ten days of the filing of the request for declaratory action. Section 63-46b-10 and Section 9 of this rule govern intervention in proceedings to issue declaratory orders.]

R280-150-1. Definitions.

"Board" means the Utah State Board of Education.

 

R280-150-2. Authority and Purpose.

A. This rule is authorized by 53A-24-103 which places the Utah State Office of Rehabilitation under the policy direction of the Board and under the direction and general supervision of the Superintendent of Public Instruction, and Section 53A-1-401(3) which allows the Board to adopt rules in accordance with its responsibilities.

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

 

R280-150-3. Standards and Procedures.

A. As its rules for adjudicative proceedings under the Vocational Rehabilitation Act, the Board adopts and hereby incorporates by reference: 34 C.F.R. 361.57, 2007 edition, which adopts, defines, and publishes procedures for review of state rehabilitation service decisions, including alternative dispute resolution through mediation; and

B. The Board shall act in accordance with:

(1) Subsection V of the Rehabilitation Act of 1973, 29 U.S.C.A. 794; and

(2) The Utah State Office of Rehabilitation Case Service Manual, Chapter 21, approved on May 9, 2008.

 

KEY: administrative procedures, rules and procedures

Date of Enactment or Last Substantive Amendment: [1988]2008

Notice of Continuation: August 10, 2004

Authorizing, and Implemented or Interpreted Law: [63-46b]53A-24-103; 53A-1-401(3)