Decision

112 CMR 1.21 substitutes for 801 CMR 1.02(11). (1) Within30 days ofthe close of the hearing, the presiding officer shall submit to the Commissioner a full written report of the findings and grounds for a proposed decision, which shall be based exclusively upon the evidence, testimony, materials and legal rules presented at the hearing and good professional practices in Case Management. Any evidence, testimony, materials, and legal rules presented after the close of the proceeding shall be excluded unless the proceeding is reopened by the presiding officer, provided however, that the presiding officer may rely upon such legal rules as the officer deems relevant, even if not introduced by either party during the proceeding. (2) The presiding officer shall simultaneously mail or deliver a copy of the proposed decision to the individual or his or her authorized representative. (3) The Commissioner may review the presiding officer's proposed decision before it becomes final. If the Commissioner decides to review the proposed decision, in whole or in part, he shall notify the individual and the individual's representative of such review within 20 days of the date when the presiding officer mailed the proposed decision to the individual. If the Commissioner elects not to review the proposed decision, the individual shall be notified that the proposed decision is final and binds the Commission within 20 days of the date when the presiding officer mailed it to the individual. (4) If a notice of the Commissioner's intent to review the presiding officer's proposed decision is sent to the individual, he/she shall have the right to file written objections and submit to the Commissioner in written format additional evidence and information which is relevant to the decision within 20 days of the date when the notice was mailed. If the Commissioner seeks to review the proposed decision, no finaldecision shall be made until the individual or the individual's authorized representatives have had the opportunity to file such written objections and evidence or the 20-day time period for filing such additional evidence and objections has expired. (5) The Commissioner shall ensure that the final decision of the Commission is made in writing, and includes a full report of the findings and grounds for such a decision. If the Commissioner elects to review the proposed decision, the Commissioner's final decision shall be made within 30 days of providing notice of intent to review the proposed decision unless further time is agreed to by the individual or the individual's authorized representative. (6) The presiding officer's proposed decision and the Commissioner's final decision must be rendered in accordance with the law, which includes the duly promulgated regulations of the Commission and other Massachusetts agencies, state and federal statutes, federal regulations, the Constitutions of the United States and the Commonwealth of Massachusetts, as well as court decisions of Massachusetts and the United States and administrative policies of the Commission. Neither the Commissioner nor the presiding officer shall render decisions which require the determination of the legality of the Commission regulations. Such matters may be decided by the courts without any necessity of going through the fair hearing process. (7) In rendering a proposed or final decision, the presiding officer or the Commissioner may, take one of several courses of action which include, but are not limited to, the following: (a) find in favor of the individual; or (b) uphold the decision, action or inaction of the Commission; or (c) accept a written withdrawal of the appeal which is signed by the individual or the client's authorized representative; or (d) accept a settlement of the issues agreed to by the parties; or (e) default any party who fails to appear and does not request a rescheduling of the appeal, in accordance with 801 CMR 1.02(10)(e). 1.21 : continued (8) Both the presiding officer's proposed decision and the Commissioner's final decision shall be based upon substantial evidence. The Commissioner may not overturn or modify a proposed decision, which supports the individual's position or any part of such a decision unless the Commissioner concludes, based on clear and convincing evidence, that the decision of the independent hearing officer is clearly erroneous on the basis of being contrary to federal or state law, including Commission regulations and policies. (9) Both the presiding officer's proposed decision and the Commissioner's final decision must contain the following elements: (a) a statement of the issue or issues involved in the hearing; (b) clear and complete findings of fact on all relevant factual matters, which are supported by evidence in the record; (c) reference to all laws, regulations and other legal bases for the decision; (d) a concise statement of the conclusions drawn from the findings of fact and law, including the reasoning used in reaching the conclusions; and (e) any actions to be taken by the Commission if appropriate to the case. (10) The Commissioner shall mail a copy of the final decision to the individual and the individual's authorized representative, appropriate Commission staff, and the legal office ofthe Commission. The copy to the individual shall be mailed certified mail, return receipt requested. (a) If the final decision is favorable to the individual, the Commissioner shall notify the individual of the right to prompt implementation and the name of the individual who is responsible for implementation with advice to the Deputy Commissioner by letter if prompt implementation does not occur. (b) If the final decision is adverse to the individual, the Commissioner shall include in the notice of final decision a statement informing the individual of the right to further review and the time period within which that right must be exercised. (11) M.G.L. c. 30A, § 14 provides that a party aggrieved by a final action of an agency may seek Judicial review of the final decision by filing a complaint within 30 days of the receipt of the final decision in the appropriate superior court.