1. (a)

   1. (1) Each applicant/client has the right to a review, through an impartial hearing, of determinations made by Arkansas Rehabilitation Services personnel that affect the provision of vocational rehabilitation services to applicants/clients.
   2. (2) The impartial hearing will be completed no later than sixty (60) calendar days from the date of initial request for review, unless the parties agree to an extension of time.

2. (b)

   1. (1) The impartial hearing will be conducted by an impartial hearing officer (IHO).
   2. (2) The Program Planning Development and Evaluation Section will maintain a list of qualified impartial hearing officers who are knowledgeable in laws and regulations relating to the provision of vocational rehabilitation services.
   3. (3) The individuals on this list will be identified jointly by the Commissioner of Arkansas Rehabilitation Services and the State Rehabilitation Council.
   4. (4) The individuals will not be employees of a public agency or members of the State Rehabilitation Council.
   5. (5) The IHO will be selected on a random basis from the list of qualified impartial hearing officers.

3. (c) Impartial hearing procedures.

   1. (1)

      1. (A) An applicant/client or their representative may request the impartial hearing by submitting a Request for Impartial Hearing form.
      2. (B) The form must be submitted to the Program Planning Development and Evaluation Section no later than five (5) calendar days after the administrative review decision is issued or the mediation is completed.
      3. (C) The applicant/client may seek an extension of time to submit the Request for Impartial Hearing by notifying Arkansas Rehabilitation Services of the reason for the extension within five (5) calendar days of the administrative review decision/completion of mediation.
      4. (D) The commissioner will determine whether to grant the request.
   2. (2) When the commissioner receives a request for an impartial hearing, the Program Planning Development and Evaluation Section will gather information from the applicant/client’s ECF.

   3. (3)

      1. (A) The ECF will contain a memorandum summarizing the basis for the administrative review decision.
      2. (B) It will also contain a statement of issues and a summary of all facts supporting the administrative review decision.
      3. (C) The memorandum will be sent to the:

4. (i) Applicant/client;

   1. (ii) Appropriate Arkansas Rehabilitation Services staff member; and

      1. (iii) Program Planning Development and Evaluation Section.

   2. (4) The counselor shall notify applicants/clients in writing that they or their representatives have the right to review the client’s ECF at the local Arkansas Rehabilitation Services field office.

      1. (d) Impartial hearing withdrawal. An applicant/client may withdraw from the hearing process at any time by completing a Cancellation of an Appeal Form.

5. (e) Request for witnesses.

   1. (1) The applicant/client and/or their representative will be advised via certified mail, return receipt requested, that he or she has ten (10) days from the date of signature on the certified return receipt to request witnesses from Arkansas Rehabilitation Services or to notify Arkansas Rehabilitation Services of the witnesses the applicant/client will call.
   2. (2) The request or notice must be given in writing.
   3. (3) Also within ten (10) days of the signature on the certified return receipt, Arkansas Rehabilitation Services must notify the applicant/client, in writing, of any witnesses Arkansas Rehabilitation Services will call at the hearing.

6. (f) Scheduling the hearing.

   1. (1)

      1. (A) The Program Planning Development and Evaluation Section will coordinate with the applicant/client, Arkansas Rehabilitation Services staff, and the impartial hearing officer to schedule the hearing.
      2. (B) The Program Planning Development and Evaluation Section shall issue a letter advising the applicant/client of the time, date, and place of the hearing and the name of the IHO who will conduct the hearing.

   2. (2)

      1. (A) The hearing will normally be held in the local Arkansas Rehabilitation Services field office.
      2. (B) It may be held in another location if requested by either party and approved by the commissioner.

7. (g) Rescheduling and nonattendance.

   1. (1) A request for rescheduling by either Arkansas Rehabilitation Services staff or the applicant/client prior to the date of the hearing must be submitted to the commissioner, who will determine if good cause exists to grant such a request.
   2. (2) A hearing may also be rescheduled (and the sixty-day deadline for completing the hearing extended) by mutual agreement.
   3. (3) If the applicant/client fails to appear for the hearing, and does not provide notice prior to the date of the hearing, the matter may be dismissed at the discretion of the IHO.
   4. (4) If an emergency arises, the applicant/client must justify in writing his or her reasons for nonappearance.
   5. (5) The IHO will review the emergency justification and decide whether to dismiss the matter or reschedule the hearing.

8. (h) Arkansas Rehabilitation Services responsibilities.

   1. (1) The appropriate Arkansas Rehabilitation Services staff will present the agency’s case.

   2. (2) This staff usually includes the:

      1. (A) Counselor;
      2. (B) District Manager; and
      3. (C) Legal counsel representing the agency.
   3. (3) Arkansas Rehabilitation Services may request representation by the Attorney General’s office.
   4. (4) Arkansas Rehabilitation Services may offer witnesses and documentary evidence.
   5. (5) The applicant/client and their representative will be given an opportunity to object and cross-examine as needed, subject to the rulings of the IHO.

   6. (6) Arkansas Rehabilitation Services likewise will have the opportunity, subject to the rulings of the IHO, to object and cross-examine.

      1. (i) Confidentiality requirements.

   7. (1)

      1. (A) In light of laws protecting the disclosure of information related to vocational rehabilitation applicants/clients, the impartial hearing will be closed.
      2. (B) See 34 C.F.R. § 361.38 and Arkansas Code § 20-79-216.

   8. (2)

      1. (A) To ensure the confidentiality of the hearing, before taking testimony or evidence the IHO will inquire if there is anyone present with whom the applicant/client is not familiar.
      2. (B) Should the applicant/client answer in the affirmative, the person in question will identify himself or herself and state the reason for attending the hearing.

   9. (3)

      1. (A) Should the applicant/client object to the person’s attendance at the hearing, the IHO will decide whether the person may remain.
      2. (B) A ruling that the person may remain at the hearing will not prejudice a later objection, by either party, as to the relevance of the person’s testimony.

9. (j) Conduct of the hearing.

   1. (1)

      1. (A) The hearing will be conducted by the IHO.

      2. (B) The IHO’s responsibility is to:

         1. (i) Maintain a professional atmosphere; and
         2. (ii) Ensure the proceedings are conducted in a fair and impartial manner.
      3. (C) The IHO will explain hearing procedures and swear in witnesses.
      4. (D) The IHO shall allow both parties the opportunity to be heard and to present their evidence and testimony.
      5. (E) The applicant/client may have an attorney or representative present testimony on their behalf.
      6. (F) The applicant/client may have an interpreter or personal care attendant present, subject to the three-business-day notice requirement discussed in the notification of rights section, 20 CAR § 835-1403, above.

   2. (2)

      1. (A) The IHO will make an opening statement at the outset of the hearing.

      2. (B) The opening statement will include:

         1. (i) An introduction of the IHO;
         2. (ii) Assurances of impartiality and confidentiality;
         3. (iii) A brief description of the IHO’s role and authority with respect to the hearing; and
         4. (iv) A summary of the determination under review.

   3. (3)

      1. (A) The IHO can pose questions at any time during the proceedings.
      2. (B) Questioning of all parties will be confined to the issue or issues involved.

   4. (4)

      1. (A) The IHO is to ensure only relevant information is permitted at the hearing.
      2. (B) Arkansas Rules of Evidence will serve as general guidance as to the admissibility of evidence.

   5. (5)

      1. (A) The IHO shall not fraternize with either party prior to or during the hearing.
      2. (B) The IHO is restricted from communicating with either party privately.
   6. (6) The IHO may need to explain that all facts are to be heard by both parties to assure impartiality.
   7. (7) The IHO should provide for reasonable recesses in lengthy hearings.

10. (k) Parties’ opening statements.

    1. (1) Both parties will state:

       1. (A) Their names;
       2. (B) Whom they represent; and
       3. (C) Their addresses.

    2. (2) The applicant/client’s opening statement will be a summary of:

       1. (A) His or her reasons for requesting a hearing; and
       2. (B) The issues related to the underlying determination.

    3. (3) The Arkansas Rehabilitation Services opening statement will be a summary of:

       1. (A) The applicant’s/client’s rehabilitation case; and

       2. (B) The reasons for the determination under review.

          1. (l)

    4. (1) Questions that might be directed to Arkansas Rehabilitation Services:

       1. (A) If records, reports, and files were requested, were they made available;
       2. (B) Are copies available for the record;
       3. (C) Are all appropriate personnel in attendance; and

       4. (D) Was applicant/client informed in writing that he or she has the right:

          1. (i) To bring counsel or a representative;
          2. (ii) To provide witnesses;
          3. (iii) To examine all Arkansas Rehabilitation Services records upon which the agency based its decisions; and
          4. (iv) To request certain Arkansas Rehabilitation Services personnel be present at the hearing and of their right to cross examine the agency witnesses.

    5. (2) The role of the IHO includes:

       1. (A) Hearing both sides;
       2. (B) Limiting evidence presented at the hearing to relevant information;
       3. (C) Making a decision based on evidence presented; and

       4. (D) Engaging in fact finding.

          1. (m) Questions that might be directed to the applicant/client:
    6. (1) Have you had an opportunity to examine your VR record of services, reports, and files regarding your rehabilitation status;
    7. (2) Have you had an opportunity for an informal administrative review by the District Manager;
    8. (3) Have you had an opportunity to call witnesses; and
    9. (4) Has Arkansas Rehabilitation Services assured you that your rehabilitation status would not change until all proceedings were completed.

11. (n) IHO’s decision.

    1. (1) The IHO will prepare a report and decision based on a comprehensive review of the information presented at the hearing, as well as provisions of:

       1. (A) The approved state plan;
       2. (B) The Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq., and federal vocational rehabilitation regulations; and
       3. (C) State regulations and policies that are consistent with federal requirements.

    2. (2) The report will consist of:

       1. (A) An Introduction;
       2. (B) Findings of Fact;
       3. (C) Conclusions of Law; and
       4. (D) A Decision.
    3. (3) The IHO’s written report must be provided to the applicant/client and Arkansas Rehabilitation Services within thirty (30) calendar days of the completion of the hearing.
    4. (4) The decision stated in the IHO’s report will be final, except that any party to the hearing may bring a civil action as described under Step 5, 20 CAR § 835-1408, below.

Codification Notes: “ECF” means electronic case file. "VR" means vocational rehabilitation.