5 CSR 20-500.190 - Due Process Hearing

5 CSR 20-500.190. Due Process Hearing

PURPOSE: This rule establishes the procedures for due process hearings for applicants or eligible individuals dissatisfied with a determination made regarding the provision of services by the Office of Adult Learning and Rehabilitation Services, Department of Elementary and Secondary Education pursuant to the Rehabilitation Act of 1973 as amended, 29 USC section 701 et. seq. and the Code of Federal Regulations, 34 CFR section 361.57(e), (f), and (g).

(1) An applicant or eligible individual may request a due process hearing without informal review or mediation.

(2) An applicant or eligible individual may request a due process hearing in writing or by personally contacting the vocational rehabilitation (VR) consumer affairs office.

(3) The assistant commissioner of the Office of Adult Learning and Rehabilitation Services or his/her designee will schedule a hearing and assign an impartial hearing officer to hear the matter.

(4) A hearing will be held within sixty (60) days of the request unless the applicant, the eligible individual, or VR requests a specified time extension.

(5) A hearing will be conducted as a contested case pursuant to the provisions of Chapter 536, RSMo.

(6) The applicant or the eligible individual, or if appropriate, the individual's guardian or other representative of the applicant or the eligible individual will be allowed an opportunity to present additional evidence, information, and witnesses during the due process hearing.

(7) Copies of all correspondence, reports of contact, and written decisions rendered by the impartial hearing officer shall be placed in the applicant's or the eligible individual's case file.

(8) The impartial hearing officer will make a decision, including findings of fact and conclusions of law, based upon the provisions of the approved state plan, the federal act and/or applicable regulations, and appropriate state law and/or regulations. A written report from the impartial hearing officer will be submitted to the applicant or eligible client or, if appropriate, the individual's guardian or other representative and to the assistant commissioner within thirty (30) days of completion of the due process hearing.

(9) Within twenty (20) days of the mailing of the impartial hearing officer's written decision, either party may request in writing, a review of the written decision by the commissioner of the Department of Elementary and Secondary Education (department), or his/her designee.

(10) The commissioner or designee shall provide an opportunity for submission of additional evidence and information relevant to a final decision. The commissioner may not delegate the responsibility for reviewing the written decision of the impartial hearing officer to any VR staff.

(11) The commissioner or designee shall not overturn or modify the impartial hearing officer's decision, or part of the decision supporting the position of the applicant or eligible individual, unless the reviewing official determines based upon clear and convincing evidence that the decision of the impartial hearing officer is clearly erroneous on the basis of being contrary to the approved state plan, the federal act and/or applicable regulations, or the appropriate state law and/or regulations.

(12) The commissioner or designee shall provide a written final findings of fact and conclusions of law to the applicant or eligible individual or, if appropriate, the applicant's representative and VR within thirty (30) days of the request for administrative review.

(13) A decision of the commissioner or designee constitutes notice of a final decision on the matter by the department.

(AUTHORITY: sections 161.092, RSMo Supp. 2002 and 178.600, 178.610 and 178.620, RSMo 2000.* This rule previously filed as 5 CSR 90-4.420. Original rule filed Dec. 17, 1999, effective Aug. 30, 2000. Amended: Filed March 27, 2003, effective Oct. 30, 2003. Moved to 5 CSR 20-500.190, effective Aug. 16, 2011. Amended by Missouri Register July 1, 2014/Volume 39, Number 13, effective 8/31/2014)

*Original authority: 161.092, RSMo 1963, amended 1973, 2002; 178.600, RSMo 1963; 178.610, RSMo 1963; and 178.620, RSMo 1963.

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