SECTIONS 4710-4714 - California Statutes

WELFARE AND INSTITUTIONS CODE

SECTION 4710-4714

4710. (a) Adequate notice shall be sent to the applicant or
recipient and the authorized representative, if any, by certified
mail at least 30 days prior to any of the following actions:
(1) The agency makes a decision without the mutual consent of the
service recipient or authorized representative to reduce, terminate,
or change services set forth in an individual program plan.
(2) A recipient is determined to be no longer eligible for agency
services.
(b) Adequate notice shall be sent to the recipient and the
authorized representative, if any, by certified mail no more than
five working days after the agency makes a decision without the
mutual consent of the recipient or authorized representative, if any,
to deny the initiation of a service or support requested for
inclusion in the individual program plan.
(c) If the reason for denial of services or modification of
services in a recipient's individual program plan is a lack of funds
in the regional center budget, the regional center shall be the
service agency responsible for giving adequate notice and
participating in the fair hearing procedure under this chapter.
(d) The regional center shall, within 30 days after written notice
is mailed to the applicant or client, notify the department in
writing of the denial if a lack of funds in the regional center
budget is the reason for one of the following:
(1) The denial of services to an applicant.
(2) The denial of services to a current regional center client
requesting services not included in the client's individual program
plan but determined to be necessary by the interdisciplinary team.
(3) Denial, cutback, or termination of current services to a
recipient set forth in the individual program plan.
The notification to the department shall include the nature of the
service requested, a request that the department allocate sufficient
funds to the regional center within 30 days to provide the service,
the projected cost for the service for the balance of the fiscal
year, and information substantiating the reason for the lack of funds
to purchase the service.
(e) If a person requests regional center services and is found to
be ineligible for these services, the regional center shall give
adequate notice pursuant to Section 4701. Notice shall be sent within
five working days of the time limits set forth in Sections 4642 and
4643.
(f) The advance notice specified in subdivision (a) shall not be
required when a reduction, termination, or change in services is
determined to be necessary for the health and safety of the
recipient. However, adequate notice shall be given within 10 days
after the service agency action.

4710.5. (a) Any applicant for or recipient of services, or
authorized representative of the applicant or recipient, who is
dissatisfied with any decision or action of the service agency which
he or she believes to be illegal, discriminatory, or not in the
recipient's or applicant's best interests, shall, upon filing a
request within 30 days after notification of the decision or action
complained of, be afforded an opportunity for a fair hearing. The
opportunity to request a voluntary informal meeting and an
opportunity for mutually agreed upon voluntary mediation shall also
be offered at this time.
(b) The request for a fair hearing and for mediation, or for a
voluntary informal meeting, or any combination thereof, shall be
stated in writing on a hearing request form provided by the service
agency.
(c) If any person makes a request for mediation or a fair hearing
other than on the hearing forms, the employee of the service agency
who hears or receives the request shall provide the person with a
hearing request form and shall assist the person in filling out the
form if the person requires or requests assistance. Any employee who
willfully fails to comply with this requirement shall be guilty of a
misdemeanor.
(d) The hearing request form shall be directed to the director of
the service agency responsible for the action complained of under
subdivision (a). The service agency director shall simultaneously
facsimile (FAX) a copy of the hearing request form to the department
and the director of the responsible state agency or his or her
designee pursuant to Section 4704.5 within five working days of the
service agency director's receipt of the request. The department
shall keep a file of all hearing request forms.

4710.6. (a) Upon receipt by the service agency director of the
hearing request form requesting a fair hearing, mediation, or a
voluntary informal meeting, the service agency director shall
immediately provide adequate notice pursuant to Section 4701 to the
claimant, the claimant's guardian or conservator, parent of a minor,
and authorized representative of the claimant's rights in connection
with the fair hearing, mediation, or informal meeting. If an informal
meeting is requested by the claimant, the service agency and the
claimant shall determine a mutually agreed upon time for the meeting.
The service agency shall notify the claimant of the date upon which
his or her hearing request form was received by the service agency.
(b) The written notice shall also confirm the mutually agreed upon
date, time, and place for a voluntary informal meeting, if desired
by the claimant or his or her authorized representative, with the
service agency director or the director's designee. The written
notice shall also state that the claimant or his or her authorized
representative may decline an informal meeting.
(c) The written notification of rights required pursuant to
subdivision (a) shall not be required if the service agency includes
written notification of those rights with the notice required by
Section 4710.

4710.7. (a) Upon requesting a fair hearing, the claimant has the
right to request a voluntary informal meeting with the service agency
director or his or her designee. The purpose of the meeting is to
attempt to resolve the issue or issues that are the subject of the
fair hearing appeal informally prior to the scheduled fair hearing.
(b) If an informal meeting is held, it shall be conducted by the
service agency director or his or her designee. The service agency
director or his or her designee shall notify the applicant or
recipient and his or her authorized representative of the decision of
the informal meeting in writing within five working days of the
meeting.
(c) The written decision of the service agency director or his or
her designee shall:
(1) Identify the issues presented by the appeal.
(2) Rule on each issue identified.
(3) State the facts supporting each ruling.
(4) Identify the laws, regulations, and policies upon which each
ruling is based.
(d) Prior to the meeting, the claimant or his or her authorized
representative shall have the right to examine any documents
contained in the individual's service agency file. Access to records
shall be provided pursuant to Article 5 (commencing with Section
4725).

4710.8. (a) At an informal meeting, the claimant shall have the
rights stated pursuant to Section 4701.
(b) An informal meeting shall be held at a time and place
reasonably convenient to the claimant and the authorized
representative.
(c) An informal meeting shall be conducted in the English
language. However, if the claimant, the claimant's guardian or
conservator, the parent of a minor claimant, or the authorized
representative does not understand English, an interpreter shall be
provided who is competent and acceptable to both the person requiring
the interpreter and the service agency director or the director's
designee. Any cost of an interpreter shall be borne by the service
agency.

4710.9. (a) If the claimant or his or her authorized representative
is satisfied with the decision of the service agency following an
informal meeting, he or she shall withdraw the request for a hearing
on the matter decided. The decision of the service agency shall go
into effect 10 days after the receipt of the withdrawal of the
request for a fair hearing by the service agency. The service agency
shall immediately forward a copy of the withdrawal to the department
and to the director of the responsible state agency or his or her
designee pursuant to Section 4704.5.
(b) If the claimant or his or her authorized representative has
declined an informal meeting or is dissatisfied with the decision of
the service agency and does not request mediation, the matter shall
proceed to a fair hearing. The service agency shall immediately
notify the director of the responsible state agency that the fair
hearing request has not been withdrawn. A recommendation for
consolidation pursuant to Section 4712.2 to the director of the
responsible state agency may be made at this time.

4711. Upon receipt of the hearing request form, where a fair
hearing has been requested but mediation has not, the responsible
state agency director shall immediately notify the claimant, the
claimant's legal guardian or conservator, the parent of a minor
claimant, the claimant's authorized representative, and the service
agency director in writing of all the following information
applicable to fair hearings. Where the hearing request form contains
a request for a fair hearing and mediation, the notifications shall
be made separately, and each notice shall contain only the
information applicable to the particular type of proceeding.
(a) The time, place, and date of the fair hearing or mediation, as
applicable, if agreed to by the service agency.
(b) The rights of the parties at the fair hearing pursuant to
Section 4701 or mediation, as applicable, pursuant to Section 4711.5.
(c) The availability of advocacy assistance pursuant to
subdivision (g) of Section 4701 for both mediation and fair hearings.
(d) The name, address, and telephone number of the persons or
offices designated by the director of the responsible state agency,
as applicable, to conduct fair hearings, mediate disputes, and to
receive requests for continuance or consolidation.
(e) The rights and responsibilities of the parties established
pursuant to subdivisions (d) to (m), inclusive, of Section 4712.

4711.5. (a) Upon receipt of the written request for mediation, the
service agency shall be given five working days to accept or decline
mediation.
(b) If the service agency declines mediation, the notice of that
decision shall be sent immediately to the claimant, his or her
authorized representative, and the director of the responsible state
agency.
(c) (1) If the service agency accepts mediation, the service
agency shall immediately send notice of that decision to the
claimant, his or her authorized representative, and the director of
the responsible state agency.
(2) Within five calendar days after the receipt of the notice of
the service agency's decision regarding mediation, the responsible
state agency or the designee of the responsible state agency shall
notify the claimant, his or her authorized representative, and the
service agency of the information applicable to voluntary mediation
specified in Section 4711. The mediation shall be held within 30 days
of the date the hearing request form is received by the service
agency, unless a continuance is granted to the claimant at the
discretion of the mediator.
(3) A continuance granted pursuant to paragraph (2) shall
constitute a waiver of medicaid home and community-based services of
the participant's right to a decision within 90 days of the date the
hearing request form is received by the service agency. The extension
of time for the final decision resulting from the continuance shall
only be as long as the time period of the continuance.
(d) Mediation shall be conducted in an informal, nonadversarial
manner, and shall incorporate the rights of the claimant contained in
paragraphs (1), (3), (4), and (5) of subdivision (f) of Section
4701.
(e) The State Department of Developmental Services shall contract
with the mediators that meet the following requirements:
(1) Familiarity with the provisions of this division and
implementing regulations, familiarity with the process of reconciling
differences in a nonadversarial, informal manner.
(2) The person is not in the business of providing or supervising
services provided to regional centers or to regional center
consumers.
(f) During the course of the mediation, the mediator may meet
separately with the participants to the mediation, and may speak with
any party or parties confidentially in an attempt to assist the
parties to reach a resolution that is acceptable to all parties.
(g) The mediator shall voluntarily disqualify himself or herself
and withdraw from any case in which he or she cannot be fair and
impartial. Any party may request the disqualification of the mediator
by filing an affidavit, prior to the voluntary mediation, stating
with particularity the grounds upon which it is claimed that a fair
and impartial mediation cannot be accorded. The issue shall be
decided by the mediator.
(h) Either the service agency or the claimant or his or her
authorized representative may withdraw at any time from the mediation
and proceed to a fair hearing.

4711.7. (a) If the issue or issues involved in the mediation are
resolved to the satisfaction of both parties, the mediator shall
prepare a written resolution. Agreement of the claimant or his or her
authorized representative to the final solution shall be accompanied
by a withdrawal, in writing, of the fair hearing request. The final
resolution shall go into effect 10 days after receipt of the
withdrawal of the request for a fair hearing by the service agency.
The mediator shall immediately forward a copy of the withdrawal to
the director of the responsible state agency.
(b) If the mediation fails to resolve an issue or issues to the
satisfaction of the claimant, or his or her authorized
representative, the matter shall proceed to fair hearing with respect
to the unresolved issue or issues as provided under this chapter,
and the mediator shall immediately notify the director of the
responsible state agency of the outcome of the mediation.

4712. (a) The fair hearing shall be held within 50 days of the date
the hearing request form is received by the service agency, unless a
continuance based upon a showing of good cause has been granted to
the claimant. The service agency may also request a continuance based
upon a showing of good cause, provided that the granting of the
continuance does not extend the time period for rendering a final
administrative decision beyond the 90-day period provided for in this
chapter. For purposes of this section, good cause includes, but is
not limited to, the following circumstances:
(1) Death of a spouse, parent, child, brother, sister, grandparent
of the claimant or authorized representative, or legal guardian or
conservator of the claimant.
(2) Personal illness or injury of the claimant or authorized
representative.
(3) Sudden and unexpected emergencies, including, but not limited
to, court appearances of the claimant or authorized representative,
conflicting schedules of the authorized representative if the
conflict is beyond the control of the authorized representative.
(4) Unavailability of a witness or evidence, the absence of which
would result in serious prejudice to the claimant.
(5) An intervening request by the claimant or his or her
authorized representative for mediation.
(b) Notwithstanding Sections 19130, 19131, and 19132 of the
Government Code, the department shall contract for the provision of
independent hearing officers. Hearing officers shall have had at
least two years of full-time legal training at a California or
American Bar Association accredited law school or the equivalent in
training and experience as established by regulations to be adopted
by the department pursuant to Section 4705. These hearing officers
shall receive training in the law and regulations governing services
to developmentally disabled individuals and administrative hearings.
Training shall include, but not be limited to, the Lanterman
Developmental Disabilities Services Act and regulations adopted
thereunder, relevant case law, information about services and
supports available to persons with developmental disabilities,
including innovative services and supports, the standard agreement
contract between the department and regional centers and regional
center purchase-of-service policies, and information and training on
protecting the rights of consumers at administrative hearings, with
emphasis on assisting, where appropriate, those consumers represented
by themselves or an advocate inexperienced in administrative
hearings in fully developing the administrative record. The State
Department of Developmental Services shall seek the advice of the
State Council on Developmental Disabilities, the protection and
advocacy agency designated by the Governor in this state to fulfill
the requirements and assurances of the federal Developmental
Disabilities Assistance and Bill of Rights Act of 2000, contained in
Chapter 144 (commencing with Section 15001) of Title 42 of the United
States Code, the Association of Regional Center Agencies, and other
state agencies or organizations and consumers and family members as
designated by the department in the development of standardized
hearing procedures for hearing officers and training materials and
the implementation of training procedures by the department. The
department shall provide formal training for hearing officers on at
least an annual basis. The training shall be developed and presented
by the department, however, the department shall invite those
agencies and organizations listed in this subdivision to participate.
(c) The hearing officer shall not be an employee, agent, board
member, or contractor of the service agency against whose action the
appeal has been filed, or a spouse, parent, child, brother, sister,
grandparent, legal guardian, or conservator of the claimant, or any
person who has a direct financial interest in the outcome of the fair
hearing, or any other interest which would preclude a fair and
impartial hearing.
(d) The claimant and the service agency shall exchange a list of
potential witnesses, the general subject of the testimony of each
witness, and copies of all potential documentary evidence at least
five calendar days prior to the hearing. The hearing officer may
prohibit testimony of a witness that is not disclosed and may
prohibit the introduction of documents that have not been disclosed.
However, the hearing officer may allow introduction of the testimony
or witness in the interest of justice.
(e) The fair hearing shall be held at a time and place reasonably
convenient to the claimant and the authorized representative. The
claimant or the authorized representative of the claimant and the
regional center shall agree on the location of the fair hearing.
(f) Merits of a pending fair hearing shall not be discussed
between the hearing officer and a party outside the presence of the
other party.
(g) The hearing officer shall voluntarily disqualify himself or
herself and withdraw from any case in which he or she cannot accord a
fair and impartial hearing or consideration. Any party may request
the disqualification of the hearing officer by filing an affidavit,
prior to the taking of evidence at a hearing, stating with
particularity the grounds upon which it is claimed that a fair and
impartial hearing cannot be accorded. The issue shall be decided by
the hearing officer.
(h) Both parties to the fair hearing shall have the rights
specified in subdivision (f) of Section 4701.
(i) The fair hearing need not be conducted according to the
technical rules of evidence and those related to witnesses. Any
relevant evidence shall be admitted. Both parties shall be allowed to
submit documents into evidence at the beginning of the hearing. No
party shall be required to formally authenticate any document unless
the hearing officer determines the necessity to do so in the interest
of justice. All testimony shall be under oath or affirmation which
the hearing officer is empowered to administer.
(j) A service agency shall present its witnesses and all other
evidence before the claimant presents his or her case unless the
parties agree otherwise or the hearing officer determines that there
exists good cause for a witness to be heard out of order. This
section does not alter the burden of proof.
(k) A recording shall be made of the proceedings before the
hearing officer. Any cost of recording shall be borne by the
responsible state agency.
(l) The fair hearing shall be conducted in the English language.
However, if the claimant, the claimant's guardian or conservator,
parent of a minor claimant, or authorized representative does not
understand English, an interpreter shall be provided by the
responsible state agency.
(m) The fair hearing shall be open to the public except at the
request of the claimant or authorized representative or when
personnel matters are being reviewed.
(n) The agency awarded the contract for independent hearing
officers shall biennially conduct, or cause to be conducted, an
evaluation of the hearing officers who conduct hearings under this
part. The department shall approve the methodology used to conduct
the evaluation. Information and data for this evaluation shall be
solicited from consumers who were claimants in an administrative
hearing over the past two years, their family members or authorized
representative if involved in the hearing, regional centers, and
nonattorney advocates, attorneys who represented either party in an
administrative hearing over the past two years, and the organizations
identified in subdivision (b). Regional centers shall forward copies
of administrative decisions reviewed by the superior court to the
department. The areas of evaluation shall include, but not be limited
to, the hearing officers' demeanor toward parties and witnesses,
conduct of the hearing in accord with fairness and standards of due
process, ability to fairly develop the record in cases where
consumers represent themselves or are represented by an advocate that
does not have significant experience in administrative hearings, use
of legal authority, clarity of written decisions, and adherence to
the requirements of subdivision (b) of Section 4712.5. The department
shall be provided with a copy of the evaluation and shall use the
evaluation in partial fulfillment of its evaluation of the contract
for the provision of independent hearing officers. A summary of the
data collected shall be made available to the public upon request,
provided that the names of individual hearing officers and consumers
shall not be disclosed.

4712.2. (a) Two or more claimants with a common complaint, or their
authorized representatives, or a service agency may request the
consolidation of appeals involving a common question of law or fact.
The hearing officer may grant the request for consolidation if the
hearing officer finds that consolidation would not result in
prejudice or undue inconvenience to any party, undue delay, or a
violation of any claimant's right to confidentiality unless the
claimant agrees to have otherwise confidential information revealed
to other claimants. Requests for consolidation shall be forwarded to
the hearing officer, and postmarked within five working days of the
receipt of the notice sent pursuant to Section 4711. The hearing
officer shall notify the parties and authorized representatives, if
any, of a request for consolidation and shall afford an opportunity
for any written objections to be submitted.
(b) In all consolidated hearings, each individual claimant shall
have all the rights specified in subdivision (f) of Section 4701. A
separate written decision shall be issued to each claimant and
respective authorized representatives.

4712.5. (a) Except as provided in subdivision (c), within 10
working days of the concluding day of the state hearing, but not
later than 80 days following the date the hearing request form was
received, the hearing officer shall render a written decision and
shall transmit the decision to each party and to the director of the
responsible state agency, along with notification that this is the
final administrative decision, that each party shall be bound
thereby, and that either party may appeal the decision to a court of
competent jurisdiction within 90 days of the receiving notice of the
final decision.
(b) The hearing officer's decision shall be in ordinary and
concise language and shall contain a summary of the facts, a
statement of the evidence from the proceedings that was relied upon,
a decision on each of the issues presented, and an identification of
the statutes, regulations, and policies supporting the decision.
(c) Where the decision involves an issue arising from the federal
home- and community-based service waiver program, the hearing officer'
s decision shall be a proposed decision submitted to the Director of
Health Services as the single state agency for the medicaid program.
Within 90 days following the date the hearing request form is
postmarked or received, whichever is earlier, the director may adopt
the decision as written or decide the matter on the record. If the
Director of Health Services does not act on the proposed decision
within 90 days, the decision shall be deemed to be adopted by the
Director of Health Services. The final decision shall be immediately
transmitted to each party, along with the notice described in
subdivision (a). If the decision of the Director of Health Services
differs from the proposed decision of the hearing officer, a copy of
that proposed decision shall also be served upon each party.
(d) The department shall collect and maintain, or cause to be
collected and maintained, redacted copies of all administrative
hearing decisions issued under this division. Hearing decisions shall
be categorized by the type of service or support that was the
subject of the hearing and by the year of issuance. The department
shall make copies of the decisions available to the public upon
request at a cost per page not greater than that which it charges for
document requests submitted pursuant to Chapter 3.5 (commencing with
Section 6250) of Division 7 of Title 1 of the Government Code. The
department shall use this information in partial fulfillment of its
obligation to monitor regional centers and in its evaluation of the
contract for the provision of independent hearing officers.

4712.7. In addition to any other delegation of authority granted to
the Director of Health Services, the director may delegate his or
her authority to adopt final decisions under this chapter to hearing
officers described in subdivision (b) of Section 4712 to the extent
deemed appropriate by the director. The delegation shall be in
writing.

4713. (a) If the hearing officer's decision is unfavorable to the
claimant, and the claimant has been receiving the services which have
been the subject of the appeal, the hearing officer's decision shall
not be implemented until 10 days after receipt of certified mailing
to the claimant and the authorized representative.
(b) If the claimant, the claimant's guardian or conservator,
parent of a minor claimant, or authorized representative cannot
understand English, the written decision shall be provided by the
responsible state agency to that person in English and in such
language which such person comprehends.

4714. (a) Commencing July 1, 1999, for each appeal request
submitted pursuant to Section 4710.5, regional centers and
developmental centers shall submit information to the department
including, but not limited to, all of the following:
(1) Whether the case was resolved through an informal meeting or
mediation.
(2) Whether an informal meeting or mediation was declined, and if
so, by which party.
(3) The issue or issues involved in the case.
(4) The outcome of the case if a fair hearing was held.
(b) The information collected pursuant to this section shall be
compiled by the department and made available to the public upon
request.