federal register - U.S. Government Printing Office

Federal Register / Vol. 62, No. 28 / Tuesday, February 11, 1997 / Rules and Regulations6359appropriate, may request through theindividual’s representative, a timelyreview of those determinations. Theprocedures established by the directorof the State unit must be in accordancewith the following provisions:(a) Informal resolution. The State unitmay establish an informal process toresolve a request for review withoutconducting a formal hearing. However,a State’s informal process must beconducted and concluded within thetime period established under paragraph(b)(1) of this section for holding a formalhearing. If informal resolution is notsuccessful, a formal hearing must beconducted by the end of this sameperiod, unless the parties agree to aspecific extension of time.(b) Formal hearing procedures. Exceptas provided in paragraph (d) of thissection, the State unit shall establishformal review procedures that providethat—(1) A hearing by an impartial hearingofficer, selected in accordance withparagraph (c) of this section, must beheld within 45 days of an individual’srequest for review, unless informalresolution is achieved prior to the 45thday or the parties agree to a specificextension of time;(2) The State unit may not institute asuspension, reduction, or termination ofservices being provided under an IWRPpending a final determination of theformal hearing under this paragraph orinformal resolution under paragraph (a)of this section, unless the individual or,in an appropriate case, the individual’srepresentative so requests or the agencyhas evidence that the services have beenobtained through misrepresentation,fraud, collusion, or criminal conduct onthe part of the individual;(3) The individual or, if appropriate,the individual’s representative must beafforded an opportunity to presentadditional evidence, information, andwitnesses to the impartial hearingofficer, to be represented by counsel orother appropriate advocate, and toexamine all witnesses and otherrelevant sources of information andevidence;(4) The impartial hearing officer shallmake a decision based on the provisionsof the approved State plan, the Act,Federal vocational rehabilitationregulations, and State regulations andpolicies that are consistent with Federalrequirements and shall provide to theindividual or, if appropriate, theindividual’s representative and to thedirector of the designated State unit afull written report of the findings andgrounds for the decision within 30 daysof the completion of the hearing;(5) If the director of the designatedState unit decides to review the decisionof the impartial hearing officer, thedirector shall notify in writing theindividual or, if appropriate, theindividual’s representative of that intentwithin 20 days of the mailing of theimpartial hearing officer’s decision;(6) If the director of the designatedState unit fails to provide the noticerequired by paragraph (b)(5) of thissection, the impartial hearing officer’sdecision becomes a final decision;(7) The decision of the director of thedesignated State unit to review anyimpartial hearing officer’s decision mustbe based on standards of reviewcontained in written State unit policy;(8) If the director of the designatedState unit decides to review the decisionof the impartial hearing officer, thedirector shall provide the individual or,if appropriate, the individual’srepresentative an opportunity to submitadditional evidence and informationrelevant to the final decision;(9) The director may not overturn ormodify a decision, or part of a decision,of an impartial hearing officer thatsupports the position of the individualunless the director concludes, based onclear and convincing evidence, that thedecision of the impartial hearing officeris clearly erroneous because it iscontrary to the approved State plan, theAct, Federal vocational rehabilitationregulations, or State regulations orpolicies that are consistent with Federalrequirements;(10) Within 30 days of providingnotice of intent to review the impartialhearing officer’s decision, the director ofthe designated State unit shall make afinal decision and provide a full reportin writing of the decision, including thefindings and the statutory, regulatory, orpolicy grounds for the decision, to theindividual or, if appropriate, theindividual’s representative;(11) The director of the designatedState unit may not delegateresponsibility to make any finaldecision to any other officer oremployee of the designated State unit;and(12) Except for the time limitationsestablished in paragraphs (b)(1) and(b)(5) of this section, each State’s reviewprocedures may provide for reasonabletime extensions for good cause shown atthe request of a party or at the requestof both parties.(c) Selection of impartial hearingofficers. Except as provided inparagraph (d) of this section, theimpartial hearing officer for a particularcase must be selected—(1) From among the pool of personsqualified to be an impartial hearingofficer, as defined in § 361.5(b)(22), whoare identified by the State unit, if theState unit is an independentcommission, or jointly by the designatedState unit and those members of theState Rehabilitation Advisory Councildesignated in section 102(d)(2)(C) of theAct, if the State has a Council; and(2)(i) On a random basis; or(ii) By agreement between the directorof the designated State unit and theindividual or, if appropriate, theindividual’s representative.(d) State fair hearing board. Theprovisions of paragraphs (b) and (c) ofthis section are not applicable if theState has a fair hearing board that wasestablished before January 1, 1985, thatis authorized under State law to reviewrehabilitation counselor or coordinatordeterminations and to carry out theresponsibilities of the director of thedesignated State unit under this section.(e) Informing affected individuals.The State unit shall inform, throughappropriate modes of communication,all applicants and eligible individualsof—(1) Their right to review under thissection, including the names andaddresses of individuals with whomappeals may be filed; and(2) The manner in which an impartialhearing officer will be selectedconsistent with the requirements ofparagraph (c) of this section.(f) Data collection. The director of thedesignated State unit shall collect andsubmit, at a minimum, the followingdata to the Secretary for inclusion eachyear in the annual report to Congressunder section 13 of the Act:(1) The number of appeals toimpartial hearing officers and the Statedirector, including the type ofcomplaints and the issues involved.(2) The number of decisions by theState director reversing in whole or inpart a decision of the impartial hearingofficer.(3) The number of decisions affirmingthe position of the dissatisfiedindividual assisted through the clientassistance program, when thatassistance is known to the State unit.(Approved by the Office of Management andBudget under control number 1820–0500.)(Authority: Secs. 102(b) and 102(d) of theAct; 29 U.S.C. 722(b) and 722(d))Subpart C—Financing of StateVocational Rehabilitation Programs§ 361.60 Matching requirements.(a) Federal share—(1) General. Exceptas provided in paragraphs (a)(2) and(a)(3) of this section, the Federal sharefor expenditures made by the State unitunder the State plan, including