Chapter 1 – Introduction

You have a right to appeal if:

1. You are a regional center client who asked for a new service and the regional center said “no”;
2. The regional center wants to reduce or take away a service you already get; or
3. The regional center says you are not eligible for services.

This manual gives you information about how to appeal and what to expect during the appeal. If you are appealing a denial of eligibility, number 3, please see our Regional Center Eligibility Hearing Packet, at http://www.disabilityrightsca.org/pubs/557301.pdf

You may want to ask for a hearing if you disagree with a reduction, change, or denial of a service that you think you need from the regional center. An administrative hearing is not the same as going to court, and it is nothing to be afraid of. An administrative hearing is sometimes called a “fair hearing.” These hearings are usually held inside a room in or near the regional center. The judge for the hearing is called an “administrative law judge.”

The section on hearings below explains how you can ask for a hearing and the hearing process.

Chapter 2 – The Hearing Process

Adequate Notice

If the regional center wants to deny, reduce, or end a service, the regional center should schedule an Individual Program Plan (IPP) meeting. You have a right to get a written notice of action (NOA) if the regional center says “no” to what you want. The regional center notice must tell you what it plans to do and which laws allow it to make its decision. This information helps you decide if you should appeal, and it helps you prepare for your hearing. The notice must say:

• What the regional center will do;
• Why the regional center is doing it;
• When the regional center is doing it;
• The law, rule, or policy that lets them do it;
• How and where to file an appeal;
• The deadlines for filing an appeal;
• Information about what happens in the appeal process;
• How to review your regional center records, and
• Where to get advocacy help.

Once you receive the NOA, you can file for hearing if you disagree. If the regional center denies, reduces or terminates a service without giving you notice, you can still appeal - you do not need a NOA in order to appeal. You just need to fill out a Fair Hearing Request Form, which can be found at http://www.dds.ca.gov/Forms/FairHearing/DS1805.pdf.

Filing for Hearing

To file for hearing, fill out and send in the Fair Hearing Request Form that the regional center sent with your NOA. Send your request for hearing request to your regional center. If you are not sure who to send it to, send it to both your regional center and the Office of Administrative Hearings at 2349 Gateway Oaks Drive, Suite 200, Sacramento, CA 95833 or fax it to (916) 376-6318.

Keeping your Services While you Appeal (“Aid Paid Pending”)

If the regional center tries to change the services you already get, you have the right to keep the services the same while you appeal. You must appeal within 10 days of the date you received your NOA to keep your services from changing. This is called “aid paid pending.” If you ask for a new service and the regional center says “no,” you do not have a right to aid paid pending.

Informal Meeting

When you file the Fair Hearing Request Form, you can ask for an informal meeting and/or a mediation before the hearing. The informal meeting is the first step in the hearing process. It is a meeting between you (and your representative, if you have one) and a regional center representative. The purpose is to resolve the issue or at least narrow down the issues for the hearing. This is your chance to meet with a regional center administrator and persuade him or her to give you the service you need. You do not have to have an informal meeting. If you ask for one, the regional center must provide one. A Fair Hearing Timeline Flow Chart is included in Appendix A.

Within 5 working days after an informal meeting, the regional center must send you a written decision. The written decision must list the issues discussed at the meeting. The decision must state the regional center’s decision on each issue, the facts supporting each decision, and the laws, regulations and policies that the regional center used to make its decision. It must also tell you how you can appeal the decision.

If you agree with the regional center’s decision after your informal meeting, you can withdraw your request for a hearing. Do this by filling out the “Notification of Resolution” form that the regional center provides. The decision will go into effect 10 days after the regional center receives the “Notification of Resolution” form.

If you disagree with the regional center’s decision after your informal meeting, you can continue with the scheduled mediation or a hearing. You do not have to accept the regional center’s decision.

Mediation

If you disagree with the informal decision, the next step is mediation. You or the regional center may decide not to participate in mediation. Many regional centers do not participate. If you ask for a mediation and the regional center says “no,” then the next step is a fair hearing.

Mediation is a meeting where an independent, trained mediator meets with you and a regional center representative. It takes place within 30 days of your request for a hearing. The mediator tries to find common ground and new solutions. The mediator has no power to force an agreement. If you reach an agreement, you sign an agreement document and the appeal process stops. If you do not reach an agreement, you go to a fair hearing.

Everyone should consider using mediation. Mediation is often a good idea because it gives you and the regional center another chance to reach an agreement. However, it does take some time. The mediator is independent and will try to help you reach an agreement. Even if mediation does not work for you, you will have more information about the regional center’s case. That information can help you at your fair hearing. If you think there is no hope for an agreement, you can decide NOT to mediate. This is called “waiving mediation.” But, many people who think there is no hope for an agreement end up reaching an agreement in mediation. If you or the regional center waive mediation, make sure you are ready for your hearing. Your hearing may be scheduled sooner than if you go to mediation.

Motions

A motion is a request to the administrative law judge to decide something before the hearing. Examples of motions include motions to dismiss based on applicable statutes of limitations or motions to void subpoenas. You can file motions. The regional center can also file motions.

The Administrative Procedure Act (“APA”) does not apply to regional center hearings, but it might be a useful guide for responding to motions. The APA can be found at http://www.dgs.ca.gov/oah/GeneralJurisdiction/APAHearings.aspx.

Some regional centers have filed motions to dismiss a case. A motion to dismiss asks the judge not to allow the hearing because you do not have a right to a hearing. This kind of motion is rare. It is also contrary to the law, which guarantees your right to a hearing. The only exception is when there is no factual issue at all, for example, if the law said that no one is ever eligible for a certain service anymore, regardless of their needs.

Fair Hearing

The last step in the appeal process is the fair hearing. It takes place within 50 days of your hearing request unless someone asks for a delay for good cause. You and the regional center must send each other your exhibits (evidence) and a list of witnesses 5 calendar days before your fair hearing. The hearing is held before an Administrative Law Judge (ALJ) from the Office of Administrative Hearings (OAH). At the hearing, the regional center has to present its case first. The ALJ will issue a written decision about 10 days after the hearing.

Continuance (Postponement)

Either you or the regional center may ask for the hearing or mediation date to be changed. To postpone the hearing date, you file a “Motion for Continuance of Hearing and Waiver of Time.” Here is the link to the motion form: http://www.documents.dgs.ca.gov/oah/forms/DDS_RFC_Form.pdf

The form has space where you need to explain why you need to delay the hearing. OAH will grant a continuance if “good cause” is shown. You may also attach any documents that support your need for a continuance.

The form tells you to call the regional center representative and ask if he or she will agree to continue the hearing. In the space provided, you should write the name and phone number of the regional center person that you spoke with. Then, select whether the person has agreed to or opposed the continuance. You should ask the regional center person for a fax number or email address to send the completed form for him or her to sign.

You or your representative should sign the section entitled, “Waiver of the Time Set by Law for Lanterman Act Fair Hearing and Decision.” In order to be granted a continuance, you must agree to “waive” the hearing timelines. This means that you are agreeing for the hearing to happen later than 50 days after your fair hearing request.

Remember to fax or email the form to the regional center representative and ask him or her to sign. After the form is signed, you should fax it to OAH. Use the fax number for the area where the hearing will take place:

• OAH Sacramento: 916-376-6318
• OAH Los Angeles: 916-376-6395
• OAH San Diego: 916-376-6325
• OAH Oakland: 916-376-6323

If you do not have enough time to send a written motion, you may try calling OAH and asking for a continuance over the phone. After you file the motion to continue the hearing, you may check the OAH website to see whether the motion has been granted: http://www.dgs.ca.gov/oah/GeneralJurisdiction/Continuances.aspx

You will need to enter your OAH case number in order to perform the search.

Consolidation

Consolidation is when two or more cases with issues or facts in common are heard at the same time by the same judge. You can ask for consolidation. OAH can also ask to consolidate two or more cases. If you do not feel comfortable agreeing to consolidation, you can say “no.” The judge will decide whether to consolidate the cases based on the Lanterman Act and the circumstances of the cases.

Interpreters

If you or a witness needs an interpreter, contact OAH right away. OAH will provide a certified interpreter at no cost.

Accessibility of the Hearing Location

Hearing locations must be accessible to persons with disabilities. You should check with OAH in advance to be sure the location is accessible. If a person with a disability needs reasonable accommodation to attend the hearing, contact OAH as soon as possible so that OAH can make the arrangements.

Getting a Different Judge

Not all judges are the same. You need to learn about your judge before the hearing. You may be able to get a different judge if the one assigned to you has a history of bias or prejudice. You do this by filing a motion to recuse the judge. A sample request to change judges is included in Appendix B.

To find information about the judge assigned to your case, log onto the website for OAH at http://www.dgs.ca.gov/oah/GeneralJurisdiction/Calendar.aspx (general jurisdiction calendar) and enter your case number. The judge will be assigned close to the hearing date. Then, go to the link at http://www.dgs.ca.gov/oah/DDSHearings/DDSDecisions.aspx and enter the judge’s name. You will see a list of the cases the judge has decided. Read some of the cases to see if this is a judge who you want to decide your case. If not, then file a motion to recuse the judge. Simply send or fax the motion to recuse to OAH. Provide your contact information. If you do not hear from OAH, then call OAH before the hearing to find out whether your request was granted. Normally, the request will be granted.

Chapter 3 – Preparing for Hearing

Determining Your Legal Argument

Your legal argument is the law you are relying on to show you qualify for the service you and the regional center disagree about, and the facts that support your claim. To prepare your legal argument:

Review the law that supports your position.

Search for and read previous Fair Hearing decisions at the following link: http://www.dgs.ca.gov/oah/DDSHearings/DDSDecisions.aspx.

Preparing Your Evidence

Evidence is the facts that support your claim. Evidence includes documents and testimony by witnesses. You should only use evidence that is relevant. Evidence is relevant if it helps to prove that you are eligible for the service the regional center denied, tried to reduce, or tried to take away.

Collecting Written Evidence (Documents)

You should gather any written evidence that supports your legal argument. Some examples of evidence include:

• A description of the service;
• Your IPP that describes the goals of the service;
• Psychological reports or assessments that show you need the service;
• Resumes of the staff with specialized training;
• Progress reports from the service provider; and
• Declarations from staff or other people about the service.

You can ask for records from schools, health providers, and government agencies that might have helpful information. Do not wait to request records. Gathering documents often takes longer than you think.

Other than the documents that already exist, you may need to get additional documentary evidence to support your case, such as an assessment report by an expert. You can ask people who know about you to write letters or declarations. A judge might give more weight to information from a person who is at the hearing as a witness than a person who writes a letter or declaration.

You have a right to see any records in your regional center file, including records the regional center got from outside agencies or individuals. The regional center must give you access to your records within three working days after you ask to see them. If you want, the regional center must also help you understand your records. If the regional center file contains documents that help to prove your case, you should include them in your evidence. Do not assume that the ALJ will have them because the regional center has them. The ALJ only sees the evidence that you and the regional center choose to provide.

You should look at the regional center Purchase of Service (POS) policies or guidelines. Many of these are posted on your regional center’s website. If you cannot find the POS policies online, call the regional center and ask for a copy. If the definitions of the services are helpful to your case, include them in your evidence.

You may want to subpoena an agency to produce records for your hearing. A subpoena duces tecum compels an agency to bring records that they have and to verify to the court that the documents or records have not been altered. You can ask for the agency to do this either by declaration or by direct testimony. A subpoena form for regional center fair hearings can be found at the following link: http://www.documents.dgs.ca.gov/oah/forms/oah1-subpoena.pdf#search=subp….

Preparing Witnesses

The testimony of a witness is also a type of evidence. Sometimes witnesses need to be subpoenaed. A subpoena is a legal order compelling them to attend the hearing to testify. You should subpoena witnesses and ask witnesses to testify as soon as you get a hearing date so people will be available. A subpoena form can be found at the following link http://www.documents.dgs.ca.gov/oah/forms/oah1-subpoena.pdf#search=Subp….

You should write questions for your witnesses in advance. Go over these questions with the witnesses to make sure the witnesses understand what you are asking and that the answer is helpful to your case. If the witness’ answer doesn’t help you, then do not ask the question in the hearing. Changing the way the question is worded may help.

You should also prepare to testify, since you are the best witness for yourself or your child. Be prepared to talk about why you need the service. You might want to say why other services have been unsuccessful. These can be helpful examples of why you need the service you asked for.

Exchange of Witness List and Exhibits

At least 5 calendar days before the hearing, you and the regional center must exchange lists of possible witnesses and copies of the documents you may use as evidence at the hearing. That means you and the regional center must receive the documents and list 5 days before the hearing. The list of witnesses must include a short statement telling what each witness will testify about. A Sample Witness and Exhibit List is included in Appendix C. The ALJ can prevent you or the regional center from introducing documents and witnesses that were not given to each other 5 calendar days before the hearing.

Chapter 4 – During and After the Hearing

Arrive at the hearing with plenty of time to spare. The hearing can be a long process, so you may want to bring water and snacks. Bring a pen and paper to take notes during the hearing.

Opening Statement

You should give an opening statement. An opening statement is not required, but it helps explain to the ALJ what the hearing is about. Your opening statement should describe the service you are asking for and why. It should include the law that supports your request. Be sure to describe yourself or your child so the ALJ understands what you or your child needs. Your opening statement should be a brief summary of your case. The regional center will give its opening statement first. Then you will give yours.

Questioning Witnesses

Regional Center Witnesses

The regional center will present its witnesses first. You can ask the regional center witness questions after the regional center is done asking questions. This is called “cross-examination.” Your questions should help to show that the witness does not understand something or does not remember facts. You may also ask questions that show that a witness is taking sides, changing what he or she said earlier, or might not be telling the truth.

Pay close attention while the regional center’s witness testifies. You might notice a weakness to bring up later during your cross-examination. Otherwise, you should stick to asking the cross-examination questions that you wrote before the hearing. It is not a good idea to ask a question if you do not already know the answer, unless you think that the likely answer will help your argument greatly.

Your Own Witnesses

Next, you will ask your own witnesses questions. This is called “direct-examination.” Witnesses should only talk about things that they have done or seen or heard themselves. You should ask short, simple, clear questions.

In addition to presenting your main argument, you can ask your witnesses questions to disprove things that the regional center witnesses might have said. Otherwise, you should stick to asking the questions that you prepared before the hearing. You can ask follow-up questions if your witness’ answer is not clear.

The regional center will have the chance to cross-examine your witnesses. The ALJ can also ask witnesses questions. After the regional center has cross-examined your witness, you will have a chance to ask your witness more questions. This is called re-direct examination. At this point, you can have your witness clarify or rephrase anything negative that might have come up during cross-examination.

Closing Statements/Written Closing Brief

As you go through the hearing, you may realize that the judge does not have all the information to make a good decision. If so, you can ask the judge to “keep the record open.” The judge can say “yes” or “no” to this. If the judge agrees to keep the record open, it will allow both sides to give the judge more documents and information after the hearing.

The ALJ will usually ask for a closing statement at the end of the hearing to sum up the evidence. This is a good chance to recap what you presented at the hearing and restate your position that you are entitled to the service. Sometimes, both sides agree to do a written closing brief instead of an oral closing statement. This option allows you to think about all the testimony before you sum up your argument. A written closing brief should provide the information and facts that you have presented and set out the law that supports your case. If the ALJ kept the record open after the hearing and allowed more evidence, you can include it in your closing brief. A Sample Closing Brief is included in Appendix D. Page 16 of 39

After the Hearing

After your hearing, the ALJ has 10 days to write a decision. The decision must be made no more than 80 days after you requested your appeal. A sample hearing decision is included in Appendix E. The ALJ’s decision must:

• Be written in simple, everyday language;
• Include a summary of the facts;
• Include a statement about the evidence the ALJ used to make the decision;
• Include a decision on every issue or question that was in the hearing request and presented during the hearing; and
• State the laws, regulations, and policies that support the ALJ‘s decision.

If you disagree with the hearing decision, you have a right to appeal to Superior Court. You must appeal within 90 days after you receive the hearing decision. For more information about this process, see Rights Under the Lanterman Act, Chapter 12: http://www.disabilityrightsca.org/pubs/506301Ch12.pdf