The Appeal Process

(1) The Informal Conference. (a) The Regional Director or designee or, if requested by the appellant, an ombudsperson designated by the Commissioner, shall hold an informal conference within 30 days of notification of the appeal. The official responsible for the conference shall notify the individual, the individual's family, guardian, and designated representative, if any, the Area Director, and the service coordinator of the date of the informal conference. (b) The purpose of such informal conference shall be to conciliate the issues being appealed and, to the extent that conciliation is not accomplished, to clarify issues for further appeal and determine the parties' agreement, if any, to the material facts of the matter. (c) Except to the extent that statements of the parties are reduced to an agreed statement of facts, all statements of the parties made during the informal conference shall be considered as offers in compromise, and shall be inadmissible in any subsequent hearing under 115 CMR 6.33(2) or court proceeding. (2) Fair Hearing. (a) If the issues being appealed are not resolved at the informal conference, then the appealing party may petition the Commissioner, within 30 days of the conclusion of the informal conference, for a fair hearing. (b) Within 60 days of the filing of the appeal, the Department shall hold a fair hearing on the appeal in a manner consistent with M.G.L. c. 30A and 115 CMR 6.33(2). (c) The fair hearing shall be conducted by an impartial hearing officer designated by the Commissioner. The hearing officer may be an employee of the Department, provided, however, that no person shall be designated as a hearing officer in a particular appeal who is subject to the supervision of any facility or office within the region in which the individual is currently served or is proposed to be served. (d) The individual shall have the right to be represented at the hearing by a person of his or her choosing, at his or her expense. If the individual is unrepresented at the hearing and desires assistance, or if for any other reason the Department determines that appointment of an advocate would be in the individual's best interest, the hearing officer or the Department shall designate an advocate to assist in the appeal. (e) The individual, other appealing party, and the Department shall have the right to present any evidence relevant to the issues on appeal and shall have the right to call and examine witnesses. (f) The individual or other appealing party, with appropriate authorization, shall have the right, in accordance with 115 CMR 4.06, to examine all records held by the Department pertaining to the individual, including all records upon which the decisions at issue were made. (g) The hearing shall not be open to the public, provided that the hearing officer may allow other persons to attend if he or she deems such attendance to be in the best interest of the individual. (h) Following the hearing, the hearing officer shall prepare and submit to the Commissioner a recommended decision which shall include a summary of the evidence presented, findings of fact, proposed conclusions of law, the recommended decision, and the reasons for the decision. (i) The findings of fact in the recommended decision shall be binding on the Commissioner. The Commissioner may modify the conclusions of law and decision where the conclusions or decision are: in excess of the agency's statutory authority or jurisdiction; based on an error of law; arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. (j) Within 45 days after the conclusion of the fair hearing, the Commissioner shall issue a decision which shall be the final decision of the Department on all issues. The decision shall include a summary of the evidence presented, findings of fact, a decision on each of the issues appealed and the reasons for such decision, and a notice of the individual's right to appeal the decision to the Superior Court pursuant to M.G.L. c. 30A. (k) The decision shall be mailed to the individual, to all parties, to the Regional Director and to the individual's service coordinator. (l) The service coordinator shall arrange to have the decision explained to the individual, to the extent feasible and using an appropriate manner and form of communication. (m) Within 30 days of receipt of the decision, the Regional Director shall take action consistent with the findings and decision of the Department.