PURPOSE: This rule establishes the procedures for due process hearings for applicants or eligible individuals dissatisfied with a determination made regarding the provision of services by the Division of Vocational Rehabilitation, Department of Elementary and Secondary Education pursuant to the Rehabilitation Act of 1973 as amended and the Code of Federal Regulations.

1. (1) An applicant or eligible individual may request a due process hearing without informal review or mediation.
2. (2) An applicant or eligible individual may request a due process hearing in writing or by personally contacting a coordinator, Division of Vocational Rehabilitation (DVR).
3. (3) The assistant commissioner of DVR will set a hearing and assign a hearing officer selected pursuant to the federal regulations and/or applicable regulations.
4. (4) A hearing will be held within forty-five
5. (45) days of the request unless a party requests a specified time extension.
6. (5) A hearing will be conducted as a contested case pursuant to the provisions of Chapter 536, RSMo.
7. (6) The applicant or eligible individual, or if appropriate, the individual’s parent, guardian or other representative, will be allowed an opportunity to present additional evidence, information and witnesses during the due process hearing.
8. (7) Copies of all correspondence, reports of contact and written decisions rendered by the hearing officer shall be placed in the applicant’s or eligible individual’s case file.
9. (8) The hearing officer will make a decision based upon the provisions of the approved state plan, the federal act and/or applicable regulations, and appropriate state law and/or regulations. A written report of the findings of fact and conclusions of law will be submitted to the applicant or eligible client or, if appropriate the individual’s parent, guardian or other representative and to the assistant commissioner within thirty (30) days of completion of the due process hearing.
10. (9) Within twenty (20) days of the hearing officer’s written decision, either party may request in writing, review of the written decision to the commissioner of the Department of Elementary and Secondary Education or his/her designee.
11. (10) The commissioner or designee shall provide an opportunity for submission of additional evidence and information relevant to a final decision.

12. (11) The commissioner or designee shall not overturn or modify the hearing officer’s decision, or part of the decision supporting the position of the applicant or eligible individual, unless the reviewing official determines based upon clear and convincing evidence that the decision of the hearing officer is clearly erroneous on the basis of being contrary to the approved state plan, the federal act and/or applicable regulations, or the appropriate state law and/or regulations.

    (2/28/03)* MATT BLUNT

13. (12) The commissioner or designee shall provide a written final findings of fact and conclusions of law to the applicant or eligible individual, or, if appropriate, the applicant’s representative, and DVR in a timely manner.

AUTHORITY: sections 161.092, 178.600, 178.610 and 178.620, RSMo 1994.* Original rule filed Dec. 17, 1999, effective Aug. 30, 2000. *Original authority: 161.092, RSMo 1963, amended 1973; 178.600, RSMo 1963; 178.610, RSMo 1963; and 178.620, RSMo 1963.