Code Section Group

Welfare and Institutions Code - WIC

DIVISION 4.5. SERVICES FOR THE DEVELOPMENTALLY DISABLED [4500 - 4885]

  ( Division 4.5 added by Stats. 1977, Ch. 1252. )

CHAPTER 7. Appeal Procedure [4700 - 4731]

  ( Chapter 7 repealed and added by Stats. 1982, Ch. 506, Sec. 2. )

ARTICLE 3. Fair Hearing Procedure [4710 - 4714]
  ( Article 3 added by Stats. 1982, Ch. 506, Sec. 2. )

4710.
  

(a) Adequate notice shall be sent to the applicant or recipient and the authorized representative, if any, by certified mail at least 30 days prior to any of the following actions:

(1) The agency makes a decision without the mutual consent of the service recipient or authorized representative to reduce, terminate, or change services set forth in an individual program plan.

(2) A recipient is determined to be no longer eligible for agency services.

(b) Adequate notice shall be sent to the recipient and the authorized representative, if any, by certified mail no more than five working days after the agency makes a decision without the mutual consent of the recipient or authorized representative, if any, to deny the initiation of a service or support requested for inclusion in the individual program plan.

(c) If the reason for denial of services or modification of services in a recipient’s individual program plan is a lack of funds in the regional center budget, the regional center shall be the service agency responsible for giving adequate notice and participating in the fair hearing procedure under this chapter.

(d) The regional center shall, within 30 days after written notice is mailed to the applicant or client, notify the department in writing of the denial if a lack of funds in the regional center budget is the reason for one of the following:

(1) The denial of services to an applicant.

(2) The denial of services to a current regional center client requesting services not included in the client’s individual program plan but determined to be necessary by the interdisciplinary team.

(3) Denial, cutback, or termination of current services to a recipient set forth in the individual program plan.

The notification to the department shall include the nature of the service requested, a request that the department allocate sufficient funds to the regional center within 30 days to provide the service, the projected cost for the service for the balance of the fiscal year, and information substantiating the reason for the lack of funds to purchase the service.

(e) If a person requests regional center services and is found to be ineligible for these services, the regional center shall give adequate notice pursuant to Section 4701. Notice shall be sent within five working days of the time limits set forth in Sections 4642 and 4643.

(f) The advance notice specified in subdivision (a) shall not be required when a reduction, termination, or change in services is determined to be necessary for the health and safety of the recipient. However, adequate notice shall be given within 10 days after the service agency action.

(Amended by Stats. 2000, Ch. 416, Sec. 4. Effective January 1, 2001.)

4710.5.
  

(a) Any applicant for or recipient of services, or authorized representative of the applicant or recipient, who is dissatisfied with any decision or action of the service agency which he or she believes to be illegal, discriminatory, or not in the recipient’s or applicant’s best interests, shall, upon filing a request within 30 days after notification of the decision or action complained of, be afforded an opportunity for a fair hearing. The opportunity to request a voluntary informal meeting and an opportunity for mutually agreed upon voluntary mediation shall also be offered at this time.

(b) The request for a fair hearing and for mediation, or for a voluntary informal meeting, or any combination thereof, shall be stated in writing on a hearing request form provided by the service agency.

(c) If any person makes a request for mediation or a fair hearing other than on the hearing forms, the employee of the service agency who hears or receives the request shall provide the person with a hearing request form and shall assist the person in filling out the form if the person requires or requests assistance. Any employee who willfully fails to comply with this requirement shall be guilty of a misdemeanor.

(d) The hearing request form shall be directed to the director of the service agency responsible for the action complained of under subdivision (a). The service agency director shall simultaneously facsimile (FAX) a copy of the hearing request form to the department and the director of the responsible state agency or his or her designee pursuant to Section 4704.5 within five working days of the service agency director’s receipt of the request. The department shall keep a file of all hearing request forms.

(Amended by Stats. 2000, Ch. 416, Sec. 5. Effective January 1, 2001.)

4710.6.
  

(a) Upon receipt by the service agency director of the hearing request form requesting a fair hearing, mediation, or a voluntary informal meeting, the service agency director shall immediately provide adequate notice pursuant to Section 4701 to the claimant, the claimant’s guardian or conservator, parent of a minor, and authorized representative of the claimant’s rights in connection with the fair hearing, mediation, or informal meeting. If an informal meeting is requested by the claimant, the service agency and the claimant shall determine a mutually agreed upon time for the meeting. The service agency shall notify the claimant of the date upon which his or her hearing request form was received by the service agency.

(b) The written notice shall also confirm the mutually agreed upon date, time, and place for a voluntary informal meeting, if desired by the claimant or his or her authorized representative, with the service agency director or the director’s designee. The written notice shall also state that the claimant or his or her authorized representative may decline an informal meeting.

(c) The written notification of rights required pursuant to subdivision (a) shall not be required if the service agency includes written notification of those rights with the notice required by Section 4710.

(Amended by Stats. 2000, Ch. 416, Sec. 6. Effective January 1, 2001.)

4710.7.
  

(a) Upon requesting a fair hearing, the claimant has the right to request a voluntary informal meeting with the service agency director or his or her designee. The purpose of the meeting is to attempt to resolve the issue or issues that are the subject of the fair hearing appeal informally prior to the scheduled fair hearing.

(b) If an informal meeting is held, it shall be conducted by the service agency director or his or her designee. The service agency director or his or her designee shall notify the applicant or recipient and his or her authorized representative of the decision of the informal meeting in writing within five working days of the meeting.

(c) The written decision of the service agency director or his or her designee shall:

(1) Identify the issues presented by the appeal.

(2) Rule on each issue identified.

(3) State the facts supporting each ruling.

(4) Identify the laws, regulations, and policies upon which each ruling is based.

(d) Prior to the meeting, the claimant or his or her authorized representative shall have the right to examine any documents contained in the individual’s service agency file. Access to records shall be provided pursuant to Article 5 (commencing with Section 4725).

(Amended by Stats. 2000, Ch. 416, Sec. 7. Effective January 1, 2001.)

4710.8.
  

(a) At an informal meeting, the claimant shall have the rights stated pursuant to Section 4701.

(b) An informal meeting shall be held at a time and place reasonably convenient to the claimant and the authorized representative.

(c) An informal meeting shall be conducted in the English language. However, if the claimant, the claimant’s guardian or conservator, the parent of a minor claimant, or the authorized representative does not understand English, an interpreter shall be provided who is competent and acceptable to both the person requiring the interpreter and the service agency director or the director’s designee. Any cost of an interpreter shall be borne by the service agency.

(Amended by Stats. 2000, Ch. 416, Sec. 8. Effective January 1, 2001.)

4710.9.
  

(a) If the claimant or his or her authorized representative is satisfied with the decision of the service agency following an informal meeting, he or she shall withdraw the request for a hearing on the matter decided. The decision of the service agency shall go into effect 10 days after the receipt of the withdrawal of the request for a fair hearing by the service agency. The service agency shall immediately forward a copy of the withdrawal to the department and to the director of the responsible state agency or his or her designee pursuant to Section 4704.5.

(b) If the claimant or his or her authorized representative has declined an informal meeting or is dissatisfied with the decision of the service agency and does not request mediation, the matter shall proceed to a fair hearing. The service agency shall immediately notify the director of the responsible state agency that the fair hearing request has not been withdrawn. A recommendation for consolidation pursuant to Section 4712.2 to the director of the responsible state agency may be made at this time.

(Repealed and added by Stats. 1998, Ch. 310, Sec. 57. Effective August 19, 1998.)

4711.
  

Upon receipt of the hearing request form, where a fair hearing has been requested but mediation has not, the responsible state agency director shall immediately notify the claimant, the claimant’s legal guardian or conservator, the parent of a minor claimant, the claimant’s authorized representative, and the service agency director in writing of all the following information applicable to fair hearings. Where the hearing request form contains a request for a fair hearing and mediation, the notifications shall be made separately, and each notice shall contain only the information applicable to the particular type of proceeding.

(a) The time, place, and date of the fair hearing or mediation, as applicable, if agreed to by the service agency.

(b) The rights of the parties at the fair hearing pursuant to Section 4701 or mediation, as applicable, pursuant to Section 4711.5.

(c) The availability of advocacy assistance pursuant to subdivision (g) of Section 4701 for both mediation and fair hearings.

(d) The name, address, and telephone number of the persons or offices designated by the director of the responsible state agency, as applicable, to conduct fair hearings, mediate disputes, and to receive requests for continuance or consolidation.

(e) The rights and responsibilities of the parties established pursuant to subdivisions (d) to (m), inclusive, of Section 4712.

(Amended by Stats. 2000, Ch. 416, Sec. 9. Effective January 1, 2001.)

4711.5.
  

(a) Upon receipt of the written request for mediation, the service agency shall be given five working days to accept or decline mediation.

(b) If the service agency declines mediation, the notice of that decision shall be sent immediately to the claimant, his or her authorized representative, and the director of the responsible state agency.

(c) (1) If the service agency accepts mediation, the service agency shall immediately send notice of that decision to the claimant, his or her authorized representative, and the director of the responsible state agency.

(2) Within five calendar days after the receipt of the notice of the service agency’s decision regarding mediation, the responsible state agency or the designee of the responsible state agency shall notify the claimant, his or her authorized representative, and the service agency of the information applicable to voluntary mediation specified in Section 4711. The mediation shall be held within 30 days of the date the hearing request form is received by the service agency, unless a continuance is granted to the claimant at the discretion of the mediator.

(3) A continuance granted pursuant to paragraph (2) shall constitute a waiver of medicaid home and community-based services of the participant’s right to a decision within 90 days of the date the hearing request form is received by the service agency. The extension of time for the final decision resulting from the continuance shall only be as long as the time period of the continuance.

(d) Mediation shall be conducted in an informal, nonadversarial manner, and shall incorporate the rights of the claimant contained in paragraphs (1), (3), (4), and (5) of subdivision (f) of Section 4701.

(e) The State Department of Developmental Services shall contract with the mediators that meet the following requirements:

(1) Familiarity with the provisions of this division and implementing regulations, familiarity with the process of reconciling differences in a nonadversarial, informal manner.

(2) The person is not in the business of providing or supervising services provided to regional centers or to regional center consumers.

(f) During the course of the mediation, the mediator may meet separately with the participants to the mediation, and may speak with any party or parties confidentially in an attempt to assist the parties to reach a resolution that is acceptable to all parties.

(g) The mediator shall voluntarily disqualify himself or herself and withdraw from any case in which he or she cannot be fair and impartial. Any party may request the disqualification of the mediator by filing an affidavit, prior to the voluntary mediation, stating with particularity the grounds upon which it is claimed that a fair and impartial mediation cannot be accorded. The issue shall be decided by the mediator.

(h) Either the service agency or the claimant or his or her authorized representative may withdraw at any time from the mediation and proceed to a fair hearing.

(Amended by Stats. 2000, Ch. 416, Sec. 10. Effective January 1, 2001.)

4711.7.
  

(a) If the issue or issues involved in the mediation are resolved to the satisfaction of both parties, the mediator shall prepare a written resolution. Agreement of the claimant or his or her authorized representative to the final solution shall be accompanied by a withdrawal, in writing, of the fair hearing request. The final resolution shall go into effect 10 days after receipt of the withdrawal of the request for a fair hearing by the service agency. The mediator shall immediately forward a copy of the withdrawal to the director of the responsible state agency.

(b) If the mediation fails to resolve an issue or issues to the satisfaction of the claimant, or his or her authorized representative, the matter shall proceed to fair hearing with respect to the unresolved issue or issues as provided under this chapter, and the mediator shall immediately notify the director of the responsible state agency of the outcome of the mediation.

(Added by Stats. 1998, Ch. 310, Sec. 60. Effective August 19, 1998.)

4712.
  

(a) The fair hearing shall be held within 50 days of the date the hearing request form is received by the service agency, unless a continuance based upon a showing of good cause has been granted to the claimant. The service agency may also request a continuance based upon a showing of good cause, provided that the granting of the continuance does not extend the time period for rendering a final administrative decision beyond the 90-day period provided for in this chapter. For purposes of this section, good cause includes, but is not limited to, the following circumstances:

(1) Death of a spouse, parent, child, brother, sister, grandparent of the claimant or authorized representative, or legal guardian or conservator of the claimant.

(2) Personal illness or injury of the claimant or authorized representative.

(3) Sudden and unexpected emergencies, including, but not limited to, court appearances of the claimant or authorized representative, conflicting schedules of the authorized representative if the conflict is beyond the control of the authorized representative.

(4) Unavailability of a witness or evidence, the absence of which would result in serious prejudice to the claimant.

(5) An intervening request by the claimant or his or her authorized representative for mediation.

(b) Notwithstanding Sections 19130, 19131, and 19132 of the Government Code, the department shall contract for the provision of independent hearing officers. Hearing officers shall have had at least two years of full-time legal training at a California or American Bar Association accredited law school or the equivalent in training and experience as established by regulations to be adopted by the department pursuant to Section 4705. These hearing officers shall receive training in the law and regulations governing services to developmentally disabled individuals and administrative hearings. Training shall include, but not be limited to, the Lanterman Developmental Disabilities Services Act and regulations adopted thereunder, relevant case law, information about services and supports available to persons with developmental disabilities, including innovative services and supports, the standard agreement contract between the department and regional centers and regional center purchase-of-service policies, and information and training on protecting the rights of consumers at administrative hearings, with emphasis on assisting, where appropriate, those consumers represented by themselves or an advocate inexperienced in administrative hearings in fully developing the administrative record. The State Department of Developmental Services shall seek the advice of the State Council on Developmental Disabilities, the protection and advocacy agency designated by the Governor in this state to fulfill the requirements and assurances of the federal Developmental Disabilities Assistance and Bill of Rights Act of 2000, contained in Chapter 144 (commencing with Section 15001) of Title 42 of the United States Code, the Association of Regional Center Agencies, and other state agencies or organizations and consumers and family members as designated by the department in the development of standardized hearing procedures for hearing officers and training materials and the implementation of training procedures by the department. The department shall provide formal training for hearing officers on at least an annual basis. The training shall be developed and presented by the department, however, the department shall invite those agencies and organizations listed in this subdivision to participate.

(c) The hearing officer shall not be an employee, agent, board member, or contractor of the service agency against whose action the appeal has been filed, or a spouse, parent, child, brother, sister, grandparent, legal guardian, or conservator of the claimant, or any person who has a direct financial interest in the outcome of the fair hearing, or any other interest which would preclude a fair and impartial hearing.

(d) The claimant and the service agency shall exchange a list of potential witnesses, the general subject of the testimony of each witness, and copies of all potential documentary evidence at least five calendar days prior to the hearing. The hearing officer may prohibit testimony of a witness that is not disclosed and may prohibit the introduction of documents that have not been disclosed. However, the hearing officer may allow introduction of the testimony or witness in the interest of justice.

(e) The fair hearing shall be held at a time and place reasonably convenient to the claimant and the authorized representative. The claimant or the authorized representative of the claimant and the regional center shall agree on the location of the fair hearing.

(f) Merits of a pending fair hearing shall not be discussed between the hearing officer and a party outside the presence of the other party.

(g) The hearing officer shall voluntarily disqualify himself or herself and withdraw from any case in which he or she cannot accord a fair and impartial hearing or consideration. Any party may request the disqualification of the hearing officer by filing an affidavit, prior to the taking of evidence at a hearing, stating with particularity the grounds upon which it is claimed that a fair and impartial hearing cannot be accorded. The issue shall be decided by the hearing officer.

(h) Both parties to the fair hearing shall have the rights specified in subdivision (f) of Section 4701.

(i) The fair hearing need not be conducted according to the technical rules of evidence and those related to witnesses. Any relevant evidence shall be admitted. Both parties shall be allowed to submit documents into evidence at the beginning of the hearing. No party shall be required to formally authenticate any document unless the hearing officer determines the necessity to do so in the interest of justice. All testimony shall be under oath or affirmation which the hearing officer is empowered to administer.

(j) A service agency shall present its witnesses and all other evidence before the claimant presents his or her case unless the parties agree otherwise or the hearing officer determines that there exists good cause for a witness to be heard out of order. This section does not alter the burden of proof.

(k) A recording shall be made of the proceedings before the hearing officer. Any cost of recording shall be borne by the responsible state agency.

(l) The fair hearing shall be conducted in the English language. However, if the claimant, the claimant’s guardian or conservator, parent of a minor claimant, or authorized representative does not understand English, an interpreter shall be provided by the responsible state agency.

(m) The fair hearing shall be open to the public except at the request of the claimant or authorized representative or when personnel matters are being reviewed.

(n) The agency awarded the contract for independent hearing officers shall biennially conduct, or cause to be conducted, an evaluation of the hearing officers who conduct hearings under this part. The department shall approve the methodology used to conduct the evaluation. Information and data for this evaluation shall be solicited from consumers who were claimants in an administrative hearing over the past two years, their family members or authorized representative if involved in the hearing, regional centers, and nonattorney advocates, attorneys who represented either party in an administrative hearing over the past two years, and the organizations identified in subdivision (b). Regional centers shall forward copies of administrative decisions reviewed by the superior court to the department. The areas of evaluation shall include, but not be limited to, the hearing officers’ demeanor toward parties and witnesses, conduct of the hearing in accord with fairness and standards of due process, ability to fairly develop the record in cases where consumers represent themselves or are represented by an advocate that does not have significant experience in administrative hearings, use of legal authority, clarity of written decisions, and adherence to the requirements of subdivision (b) of Section 4712.5. The department shall be provided with a copy of the evaluation and shall use the evaluation in partial fulfillment of its evaluation of the contract for the provision of independent hearing officers. A summary of the data collected shall be made available to the public upon request, provided that the names of individual hearing officers and consumers shall not be disclosed.

(Amended by Stats. 2002, Ch. 676, Sec. 37. Effective January 1, 2003.)

4712.2.
  

(a) Two or more claimants with a common complaint, or their authorized representatives, or a service agency may request the consolidation of appeals involving a common question of law or fact. The hearing officer may grant the request for consolidation if the hearing officer finds that consolidation would not result in prejudice or undue inconvenience to any party, undue delay, or a violation of any claimant’s right to confidentiality unless the claimant agrees to have otherwise confidential information revealed to other claimants. Requests for consolidation shall be forwarded to the hearing officer, and postmarked within five working days of the receipt of the notice sent pursuant to Section 4711. The hearing officer shall notify the parties and authorized representatives, if any, of a request for consolidation and shall afford an opportunity for any written objections to be submitted.

(b) In all consolidated hearings, each individual claimant shall have all the rights specified in subdivision (f) of Section 4701. A separate written decision shall be issued to each claimant and respective authorized representatives.

(Amended by Stats. 2000, Ch. 416, Sec. 12. Effective January 1, 2001.)

4712.5.
  

(a) Except as provided in subdivision (c), within 10 working days of the concluding day of the state hearing, but not later than 80 days following the date the hearing request form was received, the hearing officer shall render a written decision and shall transmit the decision to each party and to the director of the responsible state agency, along with notification that this is the final administrative decision, that each party shall be bound thereby, and that either party may appeal the decision to a court of competent jurisdiction within 90 days of the receiving notice of the final decision.

(b) The hearing officer’s decision shall be in ordinary and concise language and shall contain a summary of the facts, a statement of the evidence from the proceedings that was relied upon, a decision on each of the issues presented, and an identification of the statutes, regulations, and policies supporting the decision.

(c) Where the decision involves an issue arising from the federal home- and community-based service waiver program, the hearing officer’s decision shall be a proposed decision submitted to the Director of Health Services as the single state agency for the medicaid program. Within 90 days following the date the hearing request form is postmarked or received, whichever is earlier, the director may adopt the decision as written or decide the matter on the record. If the Director of Health Services does not act on the proposed decision within 90 days, the decision shall be deemed to be adopted by the Director of Health Services. The final decision shall be immediately transmitted to each party, along with the notice described in subdivision (a). If the decision of the Director of Health Services differs from the proposed decision of the hearing officer, a copy of that proposed decision shall also be served upon each party.

(d) The department shall collect and maintain, or cause to be collected and maintained, redacted copies of all administrative hearing decisions issued under this division. Hearing decisions shall be categorized by the type of service or support that was the subject of the hearing and by the year of issuance. The department shall make copies of the decisions available to the public upon request at a cost per page not greater than that which it charges for document requests submitted pursuant to Chapter 3.5 (commencing with Section 6250) of Division 7 of Title 1 of the Government Code. The department shall use this information in partial fulfillment of its obligation to monitor regional centers and in its evaluation of the contract for the provision of independent hearing officers.

(Amended by Stats. 2000, Ch. 416, Sec. 13. Effective January 1, 2001.)

4712.7.
  

In addition to any other delegation of authority granted to the Director of Health Services, the director may delegate his or her authority to adopt final decisions under this chapter to hearing officers described in subdivision (b) of Section 4712 to the extent deemed appropriate by the director. The delegation shall be in writing.

(Added by Stats. 1998, Ch. 310, Sec. 63. Effective August 19, 1998.)

4713.
  

(a) If the hearing officer’s decision is unfavorable to the claimant, and the claimant has been receiving the services which have been the subject of the appeal, the hearing officer’s decision shall not be implemented until 10 days after receipt of certified mailing to the claimant and the authorized representative.

(b) If the claimant, the claimant’s guardian or conservator, parent of a minor claimant, or authorized representative cannot understand English, the written decision shall be provided by the responsible state agency to that person in English and in such language which such person comprehends.

(Added by Stats. 1983, 1st Ex. Sess., Ch. 16, Sec. 20. Effective May 12, 1983. Operative October 1, 1983, by Sec. 28 of Ch. 16.)

4714.
  

(a) Commencing July 1, 1999, for each appeal request submitted pursuant to Section 4710.5, regional centers and developmental centers shall submit information to the department including, but not limited to, all of the following:

(1) Whether the case was resolved through an informal meeting or mediation.

(2) Whether an informal meeting or mediation was declined, and if so, by which party.

(3) The issue or issues involved in the case.

(4) The outcome of the case if a fair hearing was held.

(b) The information collected pursuant to this section shall be compiled by the department and made available to the public upon request.

(Added by Stats. 1998, Ch. 859, Sec. 4. Effective January 1, 1999.)

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