(b) The individual has a right to:

1. (1) An informal review of the decision conducted by division staff not involved in the decision;
2. (2) Mediation; and
3. (3) An impartial hearing before an administrative law judge.

(c)

1. (1) A request for a review and mediation may be made by the affected individual or the individual’s representative.
2. (2) The request must be in writing and must be sent to the Director of the Division of State Services for the Blind as follows: Director Arkansas Division of Services for the Blind P.O. Box 3237 Little Rock, AR 72203

(d)

1. (1) The written request for review or mediation must be received by the director no more than sixty (60) calendar days after the appellant is notified of the action for which the review is requested.
2. (2) The appellant must identify the determination with which the appellant is dissatisfied.

(f)

1. (1) The division must contact the appellant within five (5) calendar days following receipt of the written request and explain review and mediation options.
2. (2) This contact and all other matters related to the process of review and mediation will be done by the Assistant Director of the Division of State Services for the Blind.

(h)

1. (1) If the appellant is dissatisfied with the results of an informal review or mediation, or chooses an impartial hearing initially, an impartial hearing must commence within sixty (60) calendar days of the initial written request unless the parties agree to a specific extension of time.
2. (2) The assistant director is responsible for scheduling mediators and impartial hearing officers.

(i) Informal review.

1. (1)

   1. (A) An appellant may request an informal review.
   2. (B) An informal review must not be used to deny the right of an appellant to pursue mediation or an impartial hearing.
   3. (C) Participation in the informal review is voluntary on the part of the appellant and on the part of the division.
   4. (D) The appellant or the division may terminate the informal review at any time.
   5. (E) In the event an informal review is terminated, the appellant or the division may pursue resolution through mediation or an impartial hearing.
2. (2) The informal review must be conducted by supervisory staff not involved in the original determination that caused the appellant to ask for a review.

3. (3) An appellant may choose either:

   1. (A)

(i) An informal review of written materials only.

1. (ii) Supervisory staff conducting the review must consider all written evidence presented from the time the request for informal review is received until the final decision is made; or

   1. (B)

      1. (i) An informal review of written materials with a review conference.
      2. (ii) Supervisory staff conducting the informal review must consider all written and oral evidence presented from the time the request for review is received until the final decision is made.

2. (4)

   1. (A) The final decision regarding the informal review must be made by the reviewing supervisory staff either within ten (10) calendar days following the request for an informal review of written materials only, or within ten (10) calendar days following the conclusion of an informal review conference, unless the parties agree to a specific extension of time.
   2. (B) The supervisory staff conducting the informal review must notify the appellant in writing by mail of the informal review decision.
   3. (C) The informal review decision must contain a summary of the nature and basis of the decision and the appellant's review rights under this part.

(j) Mediation.

1. (1)

   1. (A) An appellant may request mediation at any time.
   2. (B) Mediation must not be used to deny the right of an appellant to pursue an impartial hearing.
   3. (C) Participation in the mediation process is voluntary on the part of the appellant and on the part of the division.

2. (2)

   1. (A) The appellant, division, or mediator may terminate mediation at any time.
   2. (B) In the event mediation is terminated, the appellant or the division may pursue resolution through an impartial hearing.

3. (3)

   1. (A) All mediation shall be conducted by a qualified and impartial mediator as defined in 34 C.F.R. § 361.5(c)(43).
   2. (B) The mediator will be selected from a list maintained by the State of Arkansas as required in Section 102 of the Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq., as amended by the Workforce Innovation and Opportunity Act, 29 U.S.C. § 3101 et seq.
   3. (C) Selection will be on a random basis and agreed upon by both the division and the applicant/client, or their representative.
   4. (D) The division will offer a list of three (3) names of mediators and their qualifications to the applicant/client, who may then choose from those names.
   5. (E) The list of mediators will be maintained by the Quality Assurance Unit.
   6. (F) In mediation, decision-making authority rests with the parties agreeing to mediate.

   7. (G) The role of the mediator includes, but is not limited to:

      1. (i) Assisting the parties to identify issues;
      2. (ii) Facilitating communication;
      3. (iii) Focusing the parties on their interests;
      4. (iv) Maximizing the exploration of alternatives; and
      5. (v) Helping the parties reach voluntary agreements.
   8. (H) The mediator may offer options for the parties to consider as to settlement terms but will not impose settlement terms on the parties.
   9. (I) Mediation sessions must be held in a timely manner and at a location convenient to both parties.

4. (4)

   1. (A) Mediation discussions are confidential and may not be used as evidence in any subsequent due process hearings or civil proceedings, and the parties may be required to sign a confidentiality pledge prior to the commencement of mediation.
   2. (B) Any agreement resulting from mediation must be in writing with the assistance of the mediator, signed by both parties, and copies provided to both parties.
   3. (C) The division must pay for the cost of mediation but is not required to pay for any costs related to the representation of an appellant.

(k) Impartial hearing.

1. (1)

   1. (A) An appellant may choose an impartial hearing.
   2. (B) The impartial hearing officer for a particular case must be selected on a random basis from a list of qualified impartial hearing officers who have been identified by the division.
   3. (C) The hearing must be initiated and conducted according to 34 C.F.R. § 361.57(e).

2. (2)

   1. (A) The impartial hearing officer must provide by mail to both parties a full written report of the findings and grounds for the decision within thirty (30) calendar days of the completion of the hearing.
   2. (B) The impartial hearing officer's decision is final unless a review is requested by either party.

3. (3) An appellant may request a review of the impartial hearing officer's decision using the following process:

   1. (A)

      1. (i) A party who is dissatisfied with the impartial hearing officer's decision may request a review of the decision within twenty (20) calendar days of the mailing of the impartial hearing officer's decision.
      2. (ii) The review must be conducted by the director, who may not delegate the review to any employee of the division;
   2. (B) The director must provide both parties with an opportunity to submit additional evidence and information relevant to a final decision concerning the matter under review;

   3. (C) The director may not overturn or modify the impartial hearing officer's decision, or any part of the decision, that supports the position of the appellant unless the commissioner concludes, based on clear and convincing evidence, that the decision of the impartial hearing officer is clearly erroneous on the basis of being contrary to:

      1. (i) The approved state plan;
      2. (ii) Federal law and regulations; or
      3. (iii) State rules and policies that are consistent with federal requirements;
   4. (D) The director must make an independent, final decision within thirty (30) calendar days of the request after reviewing the entire hearing record and provide the decision in writing, including a full report of the findings and the statutory, regulatory, or policy grounds for the decision to both parties;
   5. (E) The director’s decision is final unless either party disagrees and brings a civil action, in which case the director’s decision must be implemented pending review by the court; and

   6. (F) Any party dissatisfied with the director’s decision after reviewing the impartial hearing officer's decision may bring a civil action with respect to the matter in dispute.

      1. (l) Representation and auxiliary aids.
4. (1) The individual may designate in writing any representative (e.g., parent, guardian, Client Assistance Program, etc.) to assist them in the informal review, mediation, or impartial hearing activities.
5. (2) Costs associated with representation will not be borne, in whole or in part, by the division.
6. (3) Auxiliary aids and services required for the individual to communicate directly with the division or for communication needs at any scheduled meeting involving the division will be provided by the division.
7. (4) Required auxiliary aids and services will be provided by the division during all stages and elements of the appeals process up through an impartial hearing.