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Hear from COFAR
Voice your opinion
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There are a number of provisions of the Fair Hearing regulation, which are important to know:
- During the Fair Hearing, you have the right to be represented by a person of your choosing, at your expense. If you are unrepresented at the hearing and desire assistance, or if for any other reason the DMR determines that appointment of an advocate would be in your ward's or family member's best interest, the hearing officer or the DMR must designate an advocate to assist in the appeal.
- Both you and the DMR have the right to present any evidence relevant to the issues on appeal and have the right to call and examine witnesses.
- You have the right, in accordance with 115 CMR 4.06, to examine all records held by the DMR pertaining to your ward or family member, including all records upon which the decisions under appeal were made.
- The Fair Hearing is not open to the public, but the hearing officer may allow other persons to attend if he or she deems such attendance to be in the best interest of your ward or family member.
- Following the Fair Hearing, the hearing officer must prepare and submit to the DMR Commissioner a recommended decision which shall include a summary of the evidence presented, findings of fact, proposed conclusions of law, the recommended decision, and the reasons for the decision.
- The findings of fact in the recommended decision are binding on the DMR Commissioner. However, the Commissioner may modify the conclusions of law and decision "where the conclusions or decision are: in excess of the agency's statutory authority or jurisdiction; based on an error of law; arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law."
- Within 45 days after the conclusion of the Fair Hearing, the DMR Commissioner must issue a decision, which will be the final decision of DMR on all issues. The decision must include a summary of the evidence presented, findings of fact, a decision on each of the issues appealed and the reasons for the decision, and a notice of the individual's right to appeal the decision to the Superior Court pursuant to M.G.L. c. 30A.
- The decision must be mailed to the individual, to all parties, to the Regional Director and to the individual's service coordinator.
- Within 30 days of the decision, the Regional Director must take action consistent with the findings and decision of DMR.
It is also important to know the following General Provisions about Fair Hearings (which are listed under 115 CMR 6.34):
- The standard of proof on all issues during a Fair Hearing is a preponderance of the evidence.
- The burden of proof is on you, the appellant, except that, with respect to appeals based on the restrictiveness of supports pursuant to 115 CMR 6.31(5), the burden of proof is on the party advocating the more restrictive alternative.
- If you are not satisfied by the final decision of the DMR, you are entitled to a judicial review of the decision, in accordance with M.G.L. c. 30A, § 14.
Transfer Regulations
As discussed under ISP Modifications above, DMR regulations specifically offer protections to you if DMR is proposing to transfer your ward or family member from his or her current residence.
The regulations (115 CMR 6.63: Transfers: Special Requirements) apply to any proposed modification to an ISP involving an individual moving from one DMR-funded residence to another. The regulations state that DMR must stop the transfer process if the guardian or other party objects to it. Under the regulations, the transfer can proceed only if the DMR prevails at an adjudicatory hearing.
The regulations state that all parties eligible to participate in ISP modification meetings must be given notice of a proposed transfer at least 45 days prior to the date of the transfer (115 CMR 6.63(2)]. The written notice must include a statement explaining how the proposed move would result in improved services and supports and quality of life for the individual. It must also specify the location of the proposed home, include a statement that the parties may visit and examine the proposed home, and must invite the parties to consult with the service coordinator or other designated staff regarding the advantages and disadvantages of the proposed transfer. (This consultation may take place as part of the ISP modification meeting.)
The written notice must further include a request for consent to the proposed transfer (consent to internal moves within a facility or residential location is not required); and include a statement of the rights of the parties established by 115 CMR 6.63, if applicable.
If any party to the ISP modification, other than a current or proposed provider of services and supports to the individual, files an objection to the proposed transfer, the transfer shall not occur unless:
- The party withdraws the objection;
- he individual, if not under guardianship, consents to the transfer;
- The guardian consents to such transfer and the individual does not object; or
- DMR prevails at an adjudicatory proceeding held pursuant to 115 CMR 6.63(4).
Any objection to the proposed transfer must be in writing, must contain a statement of the reasons for the objection, and must be addressed to the DMR Commissioner. Once an objection has been filed, DMR must file a request for an adjudicatory proceeding within the Division of Administrative Law Appeals within 20 days of receiving the objection [115 CMR 6.63(4)]. The adjudicatory proceeding with the Division of Administrative Law Appeals is established by M.G.L. c. 7, § 4H.
If DMR prevails at the adjudicatory proceeding, it must still delay the proposed transfer for 20 calendar days to enable the objecting party to appeal and seek a further stay of the transfer before a judge of the Superior Court in accordance with procedures and standards for such appeals established by M.G.L. c. 123B, § 3, and M.G.L. c. 30A. If the Department does not prevail at the adjudicatory proceeding, it shall not proceed with the proposed transfer unless the administrative hearing officer's decision is reversed on appeal to a judge of the Superior Court.
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