Fair Hearing

(1) A complainant who is dissatisfied with the decision of the Administrative Review Panel and files an appeal from that Panel’s decision within 30 days from the date of the mailing of that decision to the complainant shall be entitled to a Fair Hearing before the Advisory’ Board and Commissioner, unless the decision involves the Commission’s vocational rehabilitation program or independent living program, in which case the complainant shall be entitled to a Fair Hearing before an Impartial Hearing Officer. Failure to apply for a Fair Hearing within 30 days of the mailing of the decision of the Administrative Review Panel shall make such decision final and binding. (2) Within ten days of receipt of a request for a Fair Hearing, the Deputy Commissioner shall mail written notice to the complainant of the time and place of such hearing, at least 30 days in advance of such hearing. The Deputy Commissioner shall also inform appropriate employees of the request for a Fair Hearing, its time and place and the need or opportunity for their attendance. (3) Notice to the complainant shall inform the complainant of the right to be represented at the hearing by counsel or by other authorized representative if the individual so desires, and shall state the Commission will not be responsible for any costs incurred pursuant to the individuals appeal including, without limitation, attorney’s fees. (4) Where appropriate, the Deputy Commissioner shall schedule the Fair Hearing before members of the Advisory Board at its regularly scheduled monthly meeting. Only Advisory Board members who have not taken part in the matter under consideration may participate in the Fair Hearing. In matters involving the vocational rehabilitation or independent living program, the Deputy Commissioner shall schedule the Fair Hearing before an Impartial Hearing Officer. (5) The complainant and/or his or her personal representative and Commission employees shall be entitled to appear and present relevant information orally or in writing, examine witnesses and present arguments relevant to matters under review. (6) Authority to make final decisions based upon the record shall be exercised solely by the Commissioner. Where an Impartial Hearing Officer has heard a case involving the vocational rehabilitation or independent living program, the Commissioner may not overturn or modify such Hearing Officer’s decision, or part of such decision, that supports the position of the complainant unless the Commissioner concludes, based on clear and convincing evidence, the decision is clearly erroneous as it is contrary to federal or state law, including policy and procedure. (7) The verbatim transcript of the testimony and exhibits or an official report containing the substance of what transpired at the hearing, together with all papers and reports filed in the proceedings, and the recommendation of the Advisory Board or Impartial Hearing Officer shall constitute the exclusive record for a decision and shall be available to the complainant within a reasonable period of time. (8) A final decision shall be made in writing by the Commissioner or the Impartial Hearing Officer where appropriate, and shall include a full report of the findings and the grounds for such decision. The Commissioner or Impartial Hearing Officer shall provide a copy of such decision to the complainant and where the hearing was conducted by an Impartial Hearing Officer, to the Deputy Commissioner, within 30 days after the close of hearing. Where a hearing has been re-opened to receive new evidence, a decision shall be rendered within 30 days after the close of the additional session.