Print out the entire Chapter 10 from here.Please Note:
This document is only current up to the day it was printed.
Printed on: 02/04/2023
Please always refer to the online version for the most current up-to-date information.
This document is only current up to the day it was printed.
Printed on: 02/04/2023
Please always refer to the online version for the most current up-to-date information.
You can find the online version at:
Chapter 10: Appeals and Complaints: Disagreements with Regional Centers, Developmental Centers, or Service Providers
(10.1) What is the appeal process and my timeline to appeal?
If you disagree with a regional center or developmental center decision, you can ask them to change it. This is called an appeal.[[§§ 4710.5(a), 4710. All references in this manual are to the Lanterman Act, unless it says otherwise. The § symbol means “section.”]] There are deadlines for every step of the appeal process. If the regional center tells you it will stop or change a service you are already getting, you have 10 days to appeal if you want the service to continue until your appeal is decided.[[§ 4710.5(a).]]
If you wait more than 10 days, you can still file an appeal and get a fair hearing. But, the service will stop or change during your appeal. You must appeal within 30 days[[§ 4710.5(a). ]] to get a hearing.
Click HERE for the “Fair Hearing Request” form from the DDS website.[[You can find all DDS forms on its website: https://www.dds.ca.gov/transparency/dds-forms/. This includes hearing and appeal forms. Once you are on the forms page, use the search box to type in “fair” and 3 forms come up – Fair Hearing Request, Notification of Resolution, and Notice of Proposed Action. These are also available in Spanish.]]
You can appeal if the regional center says:
- you do not have a developmental disability and are not eligible for regional center services (“eligibility case”)
- you were eligible and are no longer eligible for services (“termination case”)
- it wants to reduce or stop a service in your IPP
- it does not allow you to get a service you need
To appeal, you must follow certain rules. This chapter talks about regional center appeals. The rules for developmental center appeals are the same. There is only one developmental center left in California. It is called Porterville Developmental Center. There is one other state-run facility that is like a developmental center, called Canyon Springs.
(10.2) What must the regional center do to change my services?
If your regional center wants to change your services, it must either:
- hold an IPP meeting and reach agreement with you about the change, or
- give you a written notice.
Some regional centers have a phone call with you and count that as the IPP meeting to change your IPP services. You do not have to agree to anything over the phone. You can insist on getting the change in writing or having a formal, face-to-face IPP meeting. At the IPP meeting, ask the regional center why it wants to change your service. If you do not agree, regional center must send you information on how you can appeal.
(10.3) When does the regional center have to give me notice?
The regional center must give you written notice if:
- You ask for regional center services and they say you do not have a developmental disability and are not eligible for services.[[§ 4710(e).]]
- You are receiving regional center services and they decide you are not eligible for services anymore.[[§ 4710(a)(2).]]
- The regional center says it will not provide a service you ask for.[[§ 4710(b).]](They have 5 working days to send you notice by certified mail.)[[§ 4710(b). ]]
- The regional center wants to stop or change a service in your IPP, and you do not agree.[[§ 4710(a)(1).]] The regional center must give you notice at least 30 days before they change the service in your IPP.[[§ 4710(a)(1). See Exception to Notice Requirements below for exceptions to this rule.]]
- The regional center says it does not have the money to give you services.[[§ 4710(c).]]
- You disagree with all or part of your IPP.[[§ 4646(i).]]
It is illegal for the regional center to deny or change a service without giving you written notice. Ask the regional center to send you written notice. You can appeal even if the regional center refuses to send you notice. See questions on appealing without a notice or late appeals. You can also file a complaint (called a Section 4731 Complaint) with the director of the regional center.[[Filing an appeal on time is more important. File a Section 4731 Complaint with your fair hearing appeal if you have enough time.]] See section on 4731 Complaints. If you live in a developmental center, notify the director.[[§ 4731(b).]]
See Supplement O for a sample 4731 Complaint.
(10.4) I have a time limit on my IPP service. Can I still appeal when it ends?
Yes. All services in your IPP should be reviewed from time to time.[[§ 4646.5(a)(6).]] You and your regional center must review your service needs at scheduled times. It does not mean your services “expire.” Some regional centers put time limits in your IPP and stop services on that day without notice. This violates your right to notice and appeal.
Some regional centers put time limits on services in forms called “purchase of service authorization.” This is an internal document. It has no control over services you have a right to.
Do not agree to have time limits in your IPP. If there is an expiration date in your IPP, that is not notice. The regional center cannot stop or change a service without giving you a notice of action that tells you about your right to appeal.[[One Administrative Law Judge says that the “regional center cannot avoid the requirement that ‘services that are being provided pursuant to a recipient’s individual program plan shall be continued during the appeal procedure.’ The fact that the IPP expressly limited the period during which regional center agreed to provide the service does not change the fact that the service was ‘being provided pursuant to…[the] recipient’s individual program plan.’ An express limit can trigger a periodic or early review of whether a consumer is entitled to have a service continue, but it cannot nullify the aid-paid-pending requirement. When a consumer appeals a reduction or change in service, the aid-paid-pending requirement entitles the consumer to have the service continue pending a resolution of the dispute.” See OAH Case No. N-2005090555, p. 8. Administrative hearing decisions can be persuasive, even though other judges don’t have to follow them.]]
You must have an IPP meeting before your current IPP expires to discuss your services. The IPP meeting must take place early enough so the regional center can send you notice at least 30 days before it wants to change a service.[[§ 4710.]]
Keep track of your IPP and services. Ask the regional center for a meeting to talk about services you still need in your IPP. If you cannot agree at your IPP meeting, the regional center must give you written notice. After you get the notice, you have 10 days to ask for an appeal if you want your services to stay until the appeal is over.[[§ 4715.]]
If you agree to end a service, the regional center does not have to give you written notice.
(10.5) What is “adequate notice?”
For the notice of action (NOA) to be adequate, it must tell you what the regional center plans to do and what laws allow them to do it. This helps you decide if you should appeal, and it helps you prepare for your hearing. The regional center notice must be clear and in a language you understand.
The notice must say:
- What the regional center will do;
- Why they are doing it;
- When they are doing it;
- The law, rule, or policy that lets them do it;
- How and where to file an appeal;
- Deadlines for filing an appeal;
- Information about what happens in the appeal process;
- How to review your regional center records to help prepare your case, and
- Where to get advocacy help.
(10.6) What if something is wrong with the notice?
Notice problems are common. Sometimes the regional center tells you they decided to change a service, but does not send you written notice. Other times, the written notice they send is incomplete.
Here is an example of incomplete notice:
“You have been determined to be ineligible for regional center services because you do not have a developmental disability as defined in Welfare and Institutions Code section 4512(a).”
This does not give you the information you need. It does not tell you what the law says. Most people do not know what Welfare and Institutions Code section 4512(a) says. It does not say why you do not have a developmental disability. It does not say what the regional center used to make its decision.
Even if your notice is incomplete, ask for an appeal as soon as possible. This protects your right to appeal and may allow you to continue your services during your appeal. When you appeal, you can say you did not get “adequate notice.” You can also file a Section 4731 Complaint. Ask for your appeal right away so your services can continue. Later, you can file a complaint.
(10.7) Can I appeal without a notice or appeal late?
Yes. If the regional center refuses to provide a service or changes a service without giving you notice, you can appeal. You do not need a notice to appeal. If regional center does not give you a notice, then your appeal cannot be considered late.
Ask for an appeal as soon as possible. This protects your right to appeal and you may have the right to continue services during the appeal. Your letter should say you did not receive “adequate notice.”
See Supplement N for timelines for appeals.
Ask for your appeal right away so your services can continue (if it is a service you are already getting). Later, you can file a complaint (called a Section 4731 Complaint) about the problems with the notice. See Section 4731 Complaints.
(10.8) Does the notice have to be in a language I understand?
Yes. All regional center notices must be in a language you (or your authorized representative) can understand.[[§ 4701(n).]] For example, if you only speak Spanish, the notice must be in Spanish.
If you do not read English well, send your service coordinator a letter saying you need notices in your primary language. You may write the letter in your own language. Ask your service coordinator to put the letter in your regional center file.
(10.9) Does the Department of Developmental Services (DDS) have forms in other languages?
DDS has these forms in other languages:
Fair Hearing Process Brochure — This brochure tells you about your right to appeal and explains fair hearing procedures.
Notice of Proposed Action DS 1803 — The regional center would fill out this form to tell you about an action it wants to take that affects your services. It tells you about your right to appeal. It also lists contact information for OCRA, the State Council on Developmental Disabilities (SCDD), and Disability Rights California.
Notification of Resolution DS 1804 — Use this form if you resolve your issues and do not need a hearing.
Fair Hearing Request DS 1805 — Use this form when you want to have an informal meeting, mediation, or a fair hearing.
You can find these forms on the DDS website: https://www.dds.ca.gov/transparency/dds-forms/.
(10.10) What if I get a Notice of Action that is not in my language?
Ask for an appeal immediately to protect your rights. If you did not appeal in time because you did not understand the notice, call your service coordinator immediately. Ask for written notice in a language you can understand. The deadlines do not start until you get notice in a language you understand.[[Disability Rights California does not know of any court case that discusses the effect of an inadequate notice on when you can appeal under the Lanterman Act. But this issue has been addressed in other administrative systems: Morales v. McMahon (1990) 223 Cal.App.3d 184 (adequate notice required before time to appeal starts to run) and Reynolds v. Workmen’s Comp. Appeals Bd. (1974) 12 Cal.3d 726 (statute of limitations tolled until the legally required notices are given). See also Item 99-12-01A from the State Hearings Division Notes from the Training Bureau concerning the consequences of sending a notice in English to someone who does not read English, www.dss.cahwnet.gov/shd/ViewNotesb_1649.htm.]]
If you get notice that uses a language you do not understand, you can file a complaint, called a Section 4731 Complaint.
(10.11) Are there times when the regional center does not have to give notice?
Yes, there is an exception to notice requirements for health and safety. If the regional center needs to change your services to protect your health and safety, they do not have to tell you in advance. The regional center has 10 days to give you notice after they make the change.[[§ 4710(f).]] The deadline for you to appeal starts when you receive the notice, not when your services change.
In all other situations, the regional center must give you notice 30 days before it changes or stops your services.
(10.12) What timeline do I have to file an appeal for fair hearing?
Once you receive the notice of action (NOA), you need to decide whether you will file an appeal. You have only 30 days to request a fair hearing. The 30 days starts from the date you receive the written NOA you disagree with. If it is a service you are already getting, and you want your services to continue, you only have 10 days.[[§ 4715.]] You must ask (in writing) for an appeal within 10 days for your services to stay the same. This is called aid paid pending.
If you miss the 30-day time limit because you did not receive an adequate notice, or received no notice at all, you should request a fair hearing right away. This protects your right to appeal and your right to continue services during the appeal. Your appeal should say you did not receive “adequate notice.” If the regional center denies, reduces, or terminates services without giving you notice, you can still appeal. You do not need a notice appeal. You can also file a Section 4731 Complaint.
(10.13) What is my right to get aid paid pending?
You have the right to continue the services regional center wants to change while you wait for your appeal. This very important right is called “aid paid pending.” But, you must ask for your appeal within 10 days of getting the notice.((§ 4715.)) If you wait more than 10 days, you will not get your current services during your appeal.
Please see a chart with the deadlines for appeals in Supplement N.
(10.14) How to do I file for hearing (appeal)?
When the regional center sends you its notice of action, they must also give you the appeal forms.[[§ 4710.5(b).]] If you ask to appeal in person, the person you ask must give you the appeal forms. That person must ask you if you want help filling out the form. If you do, they must help you.[[§ 4710.5(c).]]
It is a crime for a regional center employee to refuse to give you the appeal forms or refuse to help you fill them out.[[§ 4710.5(c). ]] If the regional center will not give you written notice, you can still appeal using the “Fair Hearing Request” form. You can write on the Fair Hearing Request form that the regional center refused to give you the form or help you.
For the Fair Hearing Request form, click HERE. It is also available in Spanish.
(10.15) How can I get help to appeal?
Call the Office of Clients’ Rights Advocacy (OCRA), State Council on Developmental Disabilities (SCDD), or Disability Rights California to ask for help. These are listed on your notice from the regional center.
If you or someone else thinks your rights or interests will not be protected during your appeal, tell your OCRA Clients’ Rights Advocate and SCDD staff. The SCDD can appoint someone to help you in your appeal. Your authorized representative and the regional center must get copies of that appointment.[[§ 4705(e).]]
See Chapter 5 for more information on SCDD.
(10.16) How can OCRA’s Clients’ Rights Advocate help me?
There is a Clients’ Rights Advocate (CRA) for the clients of every regional center. But, CRAs do not work for the regional center, even if their office is there.[[§ 4433.]]
The Office of Clients’ Rights Advocacy (OCRA) is a statewide office run by Disability Rights California, through a contract with the California Department of Developmental Services (DDS). OCRA employs a Clients’ Rights Advocate (CRA) to support clients of each regional center.
The CRA’s job is to help protect your legal rights, your right to services, and your human rights. This includes helping you in appeals against the regional center and other agencies.[[See § 4433(d)(1). See also Cal. Code Regs., tit. 17, § 50540, which allows you or your representative to file a complaint with the Clients’ Rights Advocate (CRA) if you believe that any of your rights have been abused, punitively withheld, or improperly denied. The CRA must investigate your complaint within 10 working days of receiving it, and send you a proposed resolution in writing. If you are not satisfied with the CRA’s proposed resolution, notify the CRA. Within 5 working days, the CRA must refer you to the director of the state hospital or the regional center for your service area. If the director of the state hospital or regional center does not resolve your complaint to your satisfaction within 10 working days, the director must refer you to the Department of Developmental Services’ clients’ rights officer for a final administrative decision.]] But, CRAs can only take on a limited number of cases. Before they decide to take your case, the CRA looks at:
- if you can represent yourself,
- if you have other resources available,
- if you have a strong case, and
- if the CRA is available.
Even if the CRA cannot take your case, they can still provide other help. They can talk with you about your case, give advice, and give other types of help.
(10.17) Can I get help to appeal if I am in Porterville Developmental Center or Canyon Springs Community Facility?
Porterville Developmental Center and Canyon Springs Community Facility are state-run institutions. There is a Clients’ Rights Advocate (CRA) at both Porterville Developmental Center and Canyon Springs. There is also a Volunteer Advocacy Services Coordinator at each. The Volunteer Advocacy Services Coordinator and volunteers can help you at IPP meetings and when you might move into the community. If you do not have a representative, the State Council on Developmental Disabilities (SCDD) can appoint a representative for you.
CRAs at developmental centers are not employees of the developmental center. They are also different from the CRAs at the Office of Clients’ Rights Advocacy (OCRA). The state contracts with the SCDD to provide clients’ rights advocacy services to people who live in Porterville Developmental Center and Canyon Springs.
CRAs also can look into suspected abuse and denials of rights. These CRAs make sure the laws are being followed in licensed facilities.[[§ 4433(d)(2).]]
(10.18) If I am in the Self-Determination Program (SDP), do I have the same appeal rights?
Yes. The Self-Determination Program (SDP) is a way to get your regional center services. It is different than the regular or “traditional” system. With the SDP, you get a budget and can buy services yourself, without using regional center vendors if you don’t want to. But, the regional center is involved in setting your budget amount. Plus, you still have an Individual Program Plan (IPP) with the regional center. So, there could be a disagreement. You might disagree about your budget. You might disagree about something in the IPP process. You have the same appeal rights described in this chapter if you are in the SDP. See Chapter 3 for more information on the SDP.
(10.19) What rights do I have during the appeal process?
You have a right to:
- Be at all meetings that are part of the appeal.
- Give written or spoken evidence.
- Have witnesses testify for you.
- Cross-examine the regional center’s witnesses.
- Speak for yourself at the hearing.
- Have an advocate, lawyer, or someone else represent you.
- See the regional center’s records about you and your case.
- Have an interpreter.[[§ 4701(f)(1)-(5).]]
The regional center must give you a written explanation of your rights. They should also give you written information about where to get advocacy help, such as from your Clients’ Rights Advocate, SCDD, and Disability Rights California.[[§ 4701(g).]]
(10.20) What rights do I have to see my regional center records?
If you ask to see your records, the regional center has 3 working days to show them to you.[[§§ 4726, 4728. The law says that you have the right to access your files before the voluntary informal meeting. See § 4710.7(d).]] You have a right to see all the records in your regional center file, even records from outside agencies or people.[[“Record” means any piece of information that a service agency has that is directly related to a person who has, or is believed to have, a developmental disability. It includes handwritten information, printed materials, tapes, film, microfilm, or other information. § 4725(b). Disability Rights California believes that you should have access to these materials if you are requesting access to records under § 4514 and if you are trying to decide if you want to ask for a fair hearing.]] If you ask for help, the regional center must help you understand your records.[[§ 4728.]]
It is important for you to review your file and ask for copies of the records you need before your hearing.
(10.21) What are the appeal process steps?
- Ask for a Hearing – You can ask for a hearing in person, over the phone, or in writing.
- Regional Center Response – The regional center must send you a notice that recognizes your request for a hearing.[[§§ 4710.6(a)-(c).]] If you did not get a notice from the regional center, they must send you one with all the information required for an “adequate notice.”[[§§ 4710.6(a)-(c). ]]
- Fair Hearing Request Form – When you tell the regional center you want a fair hearing, the regional center must give you a fair hearing request form. If you need help filling out the form, the regional center must help you.[[§ 4710.5(b) & (c).]]
- Informal Meeting – If you want to have an informal meeting, regional center must hold one. You and the regional center must agree on a time for the meeting.[[§ 4710.6(a).]] The regional center must send you a written notice to confirm the date, time, and place of your informal meeting. The notice must also say you can refuse to have an informal meeting.[[§ 4710.6(b). ]]
- Mediation – Mediation is when an independent, trained person (“mediator”) helps you come to an agreement that is fair and okay for you and the regional center. We recommend mediation. Both you and the regional center can decide not to mediate. If you ask for mediation in writing, the regional center has 5 working days to decide if they want mediation.[[§ 4711.5(a).]] Even if you choose not to have mediation, you still have a right to a fair hearing. It is your choice.[[§ 4710.9(b).]]
- Fair Hearing – You have a right to a hearing before a judge no more than 50 days after the regional center receives your request for hearing.[[§ 4712(a).]] The judge is called an Administrative Law Judge (ALJ). If you or the regional center asks, and has a good reason, the ALJ may let the hearing be later. (See Question 26.)
- Fair Hearing Decision – The judge must give a decision no more than 10 working days after your hearing ends. This cannot be more than 80 days after you ask for a hearing.[[§ 4712.5(a).]] If the hearing is about rights or services under the Medi-Cal Home and Community Based Waiver (“DD Waiver”), the Department of Health Services reviews the decision. They can accept the judge’s decision or make a new decision. They have to do this no more than 90 days after you ask for a hearing.[[§ 4712.5(c).]] See Chapter 11 for information on the DD Waiver.
- Appeal a Fair Hearing Decision – If you disagree with the hearing decision, you have 90 days to file a Writ of Administrative Mandamus in superior court.[[§ 4712.5(a). ]]
(10.22) What is an informal meeting?
An informal meeting is a meeting between you and a regional center administrator. When you file the Fair Hearing Request Form, you can ask for an informal meeting and a mediation before the hearing. If you ask for an informal meeting, the regional center must provide one within 10 days of getting your fair hearing request, unless you agree to another date. The informal meeting is the first step in the hearing process. You do not have to have an informal meeting if you do not want to. Your representative can be there, if you have one.[[§ 4710.7.]]
This is your chance to meet with the regional center and convince them to give you the services you need. Even if you cannot agree, you still can understand the regional center’s side and try to agree on some points.
After the meeting, the regional center has 5 working days to send you a written decision.[[§ 4710.7(b).]] The decision must list every issue in the appeal and decide on each one. It also must say the facts, laws, regulations, and policies the regional center used to make its decision.
If you agree with the informal decision, you can cancel your request for a hearing. Do this by filling out the “Notification of Resolution” form the regional center provides, which is also found at: https://www.dds.ca.gov/wp-content/uploads/2019/05/DS1804.pdf
The decision goes into effect 10 days after the regional center gets your “Notification of Resolution.”[[§ 4710.9(a).]]
If you disagree with the informal decision, you can still go to mediation if you and the regional center agreed. You can also still go to the fair hearing.[[§ 4710.9(b).]]
(10.23) What is my right to an interpreter at the informal meeting?
The informal meeting is in English. If you do not speak English, the regional center must provide and pay for an interpreter.[[§ 4710.8(c).]]
They must also provide an interpreter if someone who goes to the meeting with you (like a parent or guardian) does not speak English. The interpreter must be able to translate well and be ok with the person who needs the interpreter and the regional center director.
(10.24) What is mediation?
Mediation is the next step in the appeal process, if you disagree with the regional center’s informal meeting decision. But, both parties must agree to go to mediation.[[§ 4707.]] You or the regional center can say you do not want mediation. If that happens, you will have a hearing.[[§§ 4710.9(b); 4711.5(b).]] The regional center has 5 working days after it gets your written appealto say yes or no to mediation. If the regional center says no, they must immediately tell you. Many regional centers say no to mediation. If you ask for a mediation and the regional center says no, the next step is a fair hearing.
Everyone should consider mediation. Mediation is a good idea because it gives you and the regional center another chance to reach an agreement. If you think there is no hope for an agreement, you can say no. This is called waiving mediation. But, many people who think there is no hope for agreement reach an agreement in mediation.
The mediator is an independent, trained professional from the Office of Administrative Hearings (OAH). They meet with you and a regional center representative. If you and the regional center agree to mediation, it must take place no more than 30 days after the regional center receives your appeal request.[[§ 4711.5(c)(2). If you choose mediation, you may have to agree to extend the deadline for the hearing and the hearing decision.]]
Mediators are trained to help people look at new or different solutions to an issue. They sit down with you and the regional center to try to solve your disagreement. Sometimes mediators meet separately with you and the regional center, and also meet with both of you together. Mediators do not decide. They cannot force you to do anything.
Many disputes are settled in mediation. When you go to mediation, be prepared. Understand the documents in your case. Know what your witnesses might say at your hearing. This makes it easier to decide the agreements you might want to make in mediation. Even if mediation does not work, you will have more information about the regional center’s case that can help you prepare for your fair hearing.
If you and the regional center can come to an agreement in mediation, you should cancel (withdraw) your request for a hearing. Get the “Notification of Resolution” form from the regional center. A mediation decision goes into effect 10 days after the regional center receives your Notification of Resolution.”[[§ 4711.7(a).]] Click HERE for the Notification of Resolution form.
If you do not reach an agreement at mediation, any offers to settle will stay secret. They cannot be used by you or the regional center later at fair hearing.
The next step is a hearing with an Administrative Law Judge (ALJ).[[§§ 4710.9(b); 4711.7(b).]]An ALJ is sometimes called a hearing officer. DDS contracts with the state Office of Administrative Hearings (OAH) to hold the hearings. OAH hires the ALJs who hold your hearing.
If you or the regional center says no to mediation, make sure you are prepared for your hearing. Your hearing may be scheduled sooner than if you go to mediation. If you need more time to prepare for hearing, you can request a continuance. A continuance is a type of motion, which must be approved by OAH.
(10.25) What are motions?
A motion is a request for a judge to decide something before the fair hearing. An example of a motion is a motion for aid paid pending because the regional center did not continue to provide services. Other examples are a motion to postpone/continue the hearing date and motions about subpoenas. You can file motions. The regional center can also file motions.
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 fair hearing. This motion is rare. It also doesn’t fit with the law, which says you normally have the right to a fair hearing. The exception is when there is no “factual issue.” This could be if the law said no one is ever eligible for a certain service anymore, no matter their needs.
(10.26) What if I need to postpone (continue) my hearing?
You or the regional center can ask the Office of Administrative Hearings (OAH) to postpone the hearing. This is called asking for a “continuance.”[[§ 4712.]] You must have “good cause” for OAH to grant your request. “Good cause” means a good reason.
You can ask to postpone the hearing if:
- A close relative (like your spouse, parent, child, etc.) dies. Or if your authorized representative, legal guardian, or conservator dies.[[§ 4712(a)(1).]]
- You are sick or your authorized representative is sick.[[§ 4712(a)(2).]]
- There is an emergency. For example, if your representative has to go to court, or has a scheduling conflict beyond their control.[[§ 4712(a)(3).]]
- Your evidence or witnesses are unavailable, and not having the witnesses or evidence would badly hurt your case.[[§ 4712(a)(4).]]
To postpone the fair hearing date, you file a “Motion for Continuance of Hearing and Waiver of Time.” Here is the link to the motion form: https://www.dgs.ca.gov/OAH/Case-Types/General-Jurisdiction/Services/Page-Content/General-Jurisdiction-Services-List-Folder/How-do-I-request-a-Continuance.
The form has a space where you need to explain the reason you need to postpone the fair hearing. You may attach any papers that support your need for a continuance.
The form tells you to call the regional center representative and ask if they will agree to postpone the fair hearing. In the space provided on the form, write the name and phone number of the regional center person to whom you spoke. Write on the form whether the person has agreed to or opposed the continuance.
You or your representative should sign the section entitled, “Waiver of the Time Set by Law for Lanterman Act Fair Hearing and Decision.” To be given a continuance, you must agree to “waive” the hearing deadlines. This means you agree the fair hearing will happen later than 50 days after the regional center got your request.
Send the completed continuance form to OAH. OAH does not accept documents by fax. You can mail documents to OAH or call OAH to ask how to send documents electronically. You can also see how to send documents electronically at the OAH website: https://www.dgs.ca.gov/OAH/Services/Page-Content/Office-of-Administrative-Hearings-Services-List-Folder/File-or-Upload-OAH-Case-Documents.
If you do not have enough time to send a written motion for continuance, call OAH and ask for a continuance over the phone. After you move to continue the fair hearing, check the OAH website to see whether the motion has been granted. You will need to enter your OAH case number to search using this website: https://www.dgs.ca.gov/OAH/Case-Types/General-Jurisdiction/Resources/Page-Content/General-Jurisdiction-Resources-List-Folder/Continuance-Ruling-Search
(10.27) How can I cancel the hearing?
If your request to continue/postpone your hearing is denied, or you are not prepared enough, you can ask to withdraw from the hearing “without prejudice.” This means your withdrawal from the fair hearing will not affect your right to appeal the issue later. It is better to withdraw without prejudice than go to the hearing unprepared. OAH says you must fill out the Notification of Resolution form. Here is the link to the form: https://www.dds.ca.gov/wp-content/uploads/2019/05/DS1804.pdf.
(10.28) What if I decide to have the hearing?
The last step in the appeal process is the fair hearing. It takes place within 50 days of your fair hearing request unless you or the regional center ask for a continuance (postponement) for good cause. If you try mediation, your hearing may be later. You and the regional center must send each other your evidence and a list of witnesses 5 calendar days before your fair hearing. The fair hearing is held before an Administrative Law Judge (ALJ) from the Office of Administrative Hearings (OAH). At the fair hearing, the regional center has to present its case first. The ALJ will issue a written decision about 10 days after the fair hearing.
(10.29) Where do I go for the hearing?
Your hearing should be at a time and place that is convenient for you. You and the regional center must agree on the location for your fair hearing.[[§ 4712(e).]] Most hearings are at the regional center. You can ask to have the hearing at the Office of Administrative Hearings[[OAH has offices in Sacramento, Oakland, downtown Los Angeles, and San Diego. OAH also has special education offices in Van Nuys and Irvine. Some people involved in appeals say that using an OAH office feels more “neutral” than using the regional center offices.]] or somewhere else.[[If you need your doctor to testify at the hearing but cannot afford to pay him or her, or your doctor cannot afford to be away from his or her patients, think about scheduling the hearing where the doctor is – with the doctor’s permission of course – so your doctor can pop in to testify between seeing patients.]]
(10.30) How do I exchange the witness and document (evidence) list with the regional center?
Evidence includes testimony of witnesses and documents that support your case. Witnesses are people (including you) and documents are papers. At least 5 calendar days before the hearing, you and the regional center must exchange lists of witnesses and copies of the documents you want to use in the hearing.[[§ 4712(d).]] That means both you and the regional center should have each other’s documents and witness list 5 days before the hearing. The witness list must shortly describe what each witness will testify about. The judge may not let you present witnesses and documents if you do not tell the regional center about them 5 days before the hearing.
To have a witness who will not agree to testify, you must subpoena them. A subpoena is a legal order forcing them to attend the fair hearing to testify. Subpoena witnesses and ask them to testify as soon as you get a hearing date so people will be available. Hearing forms, including the subpoena form are here: https://www.dgs.ca.gov/OAH/Case-Types/General-Jurisdiction/Forms/Page-Content/DDS-Forms
(10.31) How do I choose documents and witnesses for my hearing?
First, review your regional center file and other papers you have. Get copies of documents:
- That support your case.
- That talk about your needs and your background information.
- That support the regional center’s position. They will help you figure out how to respond.
- From places other than your regional center file that will help your case (ex. medical, school, or Social Security records).[[For example, evidence from doctors, physical and occupational therapists, neuropsychologists, medical records, records from the Social Security Administration, special education records from schools, etc.]]
Think about what arguments the regional center will make. How will you respond? Look at decisions in other hearings with similar issues. You can find them online at https://www.dgs.ca.gov/OAH/Case-Types/General-Jurisdiction/Resources/DDS-Decisions
(10.32) How can I subpoena witnesses?
Call the Office of Administrative Hearings (OAH) and ask for a subpoena (pronounced “sub-PEE-NA”).[[You can see the OAH hearing calendar, previously issued hearing decisions and forms online at www.oah.dgs.ca.gov/default.htm. You can also print a copy of the OAH subpoena form at www.documents.dgs.ca.gov/oah/forms/oah1-subpoena.pdf.]] You should get a subpoena for anyone whose testimony is very important to your case. That way, if that person cannot come to the hearing you have a good reason to ask for a postponement (continuance). If you want the person to bring certain documents to the hearing, ask OAH for a subpoena duces tecum. The back of the subpoena tells you how to serve the witness. Expert witnesses, like doctors, may charge a fee to testify. If they do, you are the person who has to pay that fee.[[If the doctor or other expert cannot afford to be away from his or her work or patients or you cannot afford the fee, you can ask the OAH for permission for your witness to testify by telephone. This is a common practice in Medi-Cal fair hearings administered by the Department of Social Services’ Fair Hearing Division. Send your request to the OAH presiding judge, and send a copy to the regional center. Your request should include your case number. Contact OAH at (916) 341-6990 about where to fax or mail your request. If you run into any problems getting OAH to agree to telephone testimony, contact Disability Rights California or OCRA immediately.]] Hearing forms, including the subpoena form are here: https://www.dgs.ca.gov/OAH/Case-Types/General-Jurisdiction/Forms/Page-Content/DDS-Forms
(10.33) What is a fair hearing like?
Your fair hearing is not as formal as a hearing in a court. But, it is more formal than an informal meeting or a mediation.
The hearing is recorded for audio (sound) and not video. The audio recording keeps what everyone says.[[§ 4712(k).]] An Administrative Law Judge (ALJ) from the Office of Administrative Hearings (OAH) is in charge of the hearing. The ALJ listens to the witnesses who give answers to questions from you and the regional center. Witnesses swear that they are testifying honestly, which is called being, “under oath.”
At a fair hearing, you have the right to:
- Show the written and spoken evidence.
- Call witnesses for your side. There are two types of witnesses. “Lay witnesses” are people who know the facts that help your case. “Expert witnesses,” like doctors and psychologists, give an opinion using their special training and experience.
- Have an advocate, lawyer, or other representative in the hearing. They can present your case or help you prepare your case.
- Request an interpreter from OAH if you or your witnesses do not speak English.[[§§ 4712(h); 4701(f).]]
(10.34) What are the steps in a fair hearing?
- Introduce Documents or Evidence – The Administrative Law Judge (ALJ) will introduce the documents you exchanged with the regional center into evidence. You can ask the ALJ for permission to add evidence or witnesses you did not send to the regional center in time.[[To minimize the regional center’s argument of prejudice from a surprise document or witness, give the regional center the document and name of witness with a statement about the area of testimony as soon as you can before the hearing. The ALJ is more likely to allow you to introduce a document that you provided 4 days before the hearing rather than a document the regional center first learned about at the hearing.]] The ALJ can say yes or no.[[§ 4712(d).]] Bring 3 copies of your documents to the hearing: one for the ALJ (evidence), one to show to witnesses, and one for yourself.
- Opening Statements – After documents are entered into evidence, the regional center can make an opening statement, and then you can make an opening statement. Your statement should be a short summary of your case. Your statement says what your disagreement is about, and what you want the ALJ to order.
- Witnesses – After opening statements, the ALJ listens to witness testimony. The regional center’s witnesses go first.[[§ 4712(j).]] This gives you a chance to hear them explain why they made their decision. This will help you know how to use your own witnesses, testimony and evidence. You get to ask the regional center’s witnesses questions. This is called “cross-examination.” Then, you can put on your case and ask your witnesses questions. This is called “direct examination.” The regional center also gets to ask your witnesses questions.
- Closing Statements – After the witnesses finish testifying, the ALJ can let you and the regional center make closing statements. The closing statement gives you the chance to talk to the ALJ about your evidence and how it supports your case. You do not have to give a closing statement.
- Written Closing Briefs – During the hearing, you may realize that the ALJ does not have all the information to make a true decision. You can ask the ALJ to “keep the record open.” The ALJ can say “yes” or “no” to this. If the ALJ agrees to keep the record open, you and the regional center can give the ALJ more documents and information after the hearing. You can also ask to keep the record open so you can submit a written closing brief. You write a closing brief to remind the ALJ of the information, facts, and law from the hearing. The ALJ can say yes or no to this request.
(10.35) What happens after the fair hearing?
After your hearing, the ALJ has 10 working days to write a decision. You must get the decision no more than 80 days after you appealed.[[§ 4712.5(a).]] The ALJ’s decision must:
- Be written in simple, everyday language
- Include a summary of the facts
- Name the evidence the ALJ used to make the decision[[§ 4712.5(b).]]
- Include a decision on every issue or question in the hearing request and presented during the hearing
- State the laws, regulations, and policies that support the ALJ’s decision.
(10.36) What if my appeal was for a service under the Medi-Cal Home and Community-Based Waiver Program (“DD Waiver”)?
You will still have a hearing before an Administrative Law Judge (ALJ) through the Office of Administrative Hearings (OAH). If your disagreement was about a service under the Medi-Cal Home and Community-Based Waiver program,[[f the ALJ was able to rule in your favor under the Lanterman Act and there were no questions under the Home and Community Based Services Waiver, the ALJ’s decision is the final decision.]] it is only a “proposed” decision. The Lanterman Act says OAH must submit the decision to the Director of Health Care Services to review under federal Medicaid law. If the Director agrees with the ALJ’s decision, it becomes, “adopted,” which means that decision is final. They will send you a copy of it. If the Director makes a new decision, they will send you a copy of the new decision. [[Section 4712.5(c)]]
Even though the Lanterman Act says it is the Director of Health Care Services that reviews decisions, the Lanterman Act also says they are allowed to give someone else that authority.[[Section 4712.7]] In the DD Waiver, they give that authority back to the Office of Administrative Hearings. [[DD Waiver, January 2018, page 235 of 295]] So, fair hearings under the DD Waiver are conducted by independent hearing officers with OAH. Then, the Director of DHCS, the State Medicaid Agency, has given the authority to adopt final decisions to the “Director of OAH.” If you disagree with the ALJ’s decision, you should ask the Director of OAH to review that decision under federal Medicaid law and give you a final decision. The OAH Director’s contact information is here: https://www.dgs.ca.gov/OAH/Contact
(10.37) What if I disagree with the ALJ’s hearing decision?
If you disagree with the ALJ’s final decision, the next step is court. You would have to appeal to the superior court for your county. Your appeal is called a writ of administrative mandamus or mandate.[[California Code of Civil Procedure § 1094.5]] The regional center may also appeal a decision, unless it involves rights under the Medi-Cal waiver. You must ask for the appeal within 90 days after you get the administrative hearing decision.[[§ 4712.5(a).]] To do this, you must “file” appeal papers in the superior court for your county. Going to court is complicated. There are many steps and difficult legal terms. You will probably need a lawyer.
In your appeal, you can ask the superior court to order a state agency, like DDS, to set aside its decision or take other actions. Contact a lawyer for help. Disability Rights California may be able to help you or make suggestions.
When you appeal an unfavorable ALJ decision to the superior court, the court will only look at the record from your hearing.[[To ask the superior court to review your hearing, you must file a Petition for a Writ of Administrative Mandamus, Calif. Code Civ. Proc. § 1094.5.]] That is why it is important to get all your information into the hearing record. Usually, you cannot give the court new information.[[“Where the court finds that there is relevant evidence that, in the exercise of reasonable diligence, could not have been produced or that was improperly excluded at the hearing,” the court may allow the evidence to be introduced. Calif. Code Civ. Proc. § 1094.5(f).]] The court will consider only two issues:
- Whether the trial or hearing was fair, and
- Whether there was a “prejudicial abuse of discretion.”[[Calif. Code Civ. Proc. § 1094.5(b).]] This could mean the ALJ used the wrong legal standards to make the decision. It could also mean the ALJ made a decision that is not based on the findings, or made findings that are not supported by the evidence.
If the ALJ’s decision was not in your favor because you did not have enough evidence, you cannot enter new evidence in court.
(10.38) What happens to my services during a superior court appeal?
If the ALJ decided the regional center can end the service(s) you were getting during your appeal, you will continue to get the service(s) for 10 days after you get the ALJ’s decision.[[§ 4715(a)(3).]]
If you do not want your services to end after 10 days, you must file your appeal and ask the court for a “stay” within 10 days.[[Calif. Code Civ. Proc. § 1094.5(g).]],[[§§ 4715(a)(3); 4715(c).]] The court will not give you a stay if it believes it is “against the public interest.”[[“However, no stay shall be imposed or continued if the court is satisfied that it is against the public interest.” Calif. Code Civ. Proc. § 1094.5(g).]]
(10.39) Can I ask for attorney fees for my superior court case?
Attorney fees are where the court agrees your lawyer should get paid by the other side. No one has ever asked the court to award lawyer’s fees for an appeal of an administrative hearing in a regional center matter. But, there are three situations where Disability Rights California believes you have the right to lawyer’s fees:
- If your case involves rights under the Medi-Cal Waiver, you can ask for lawyer’s fees under Welf. & Inst. Code § 10962.
- If your claims were about a violation of your federal right to due process and the regional center acts on behalf of the state (“state actor” for purposes of 42 U.S.C. § 1983), you can ask for lawyer’s fees under 42 U.S.C. § 1988.
- If you go to court to get the regional center and state to comply with a fair hearing decision, you can ask for lawyer’s fees under 42 U.S.C. § 1983 and 42 U.S.C. § 1988.
(10.40) Does the regional center have to follow the hearing decision?
If you won your appeal and the regional center will not do what the ALJ ordered, they are violating your rights. If the regional center does not make sure you get a service in your IPP, they are violating your rights.
The regional center or developmental center must give you a copy of the complaint procedure (called a “4731 Complaint”) when you apply to the regional center or when you are admitted to a developmental center. The complaint procedure must be in a language you understand. You must also get a copy at every IPP meeting.[[§ 4731(f).]] If the regional center will not do what the judge ordered, file a 4731 Complaint against the regional center. For more information, see Section on 4731 Complaints.[[There is another way you can make the regional center follow the ALJ’s decision: You can file a petition for writ of mandate (or a traditional mandamus) with the superior court for your county. (See California Code of Civil Procedure §1085.) That procedure allows you to ask the court to order the director of the regional center and the director of the Department of Developmental Services to follow the ALJ’s decision or show up personally in court to explain why not. If you file a Section 4731 complaint and still the decision is not implemented, contact Disability Rights California or OCRA.]]
(10.41) What is a section 4731 Complaint?
A “4731 Complaint” is a legal way to complain if your rights have been violated or denied. You, or someone for you, can file a section 4731 Complaint if the regional center does not follow the ALJ’s decision or does not make sure you get the services in your IPP. You can file a 4731 Complaint against a regional center, developmental center, or service provider if they have violated any of your rights.
A Section 4731 Complaint is not the same as a fair hearing appeal. You cannot file a complaint to solve a disagreement about the amount of services you get or the types of support in your IPP. A Section 4731 Complaint is only used if the regional center, developmental center, or service provider breaks the law or violates a regulation. For example, the regional center is breaking the law if:
- They do not provide services in your IPP,
- They do not do what the ALJ decides, or
- They violate one of your rights
You can file a Section 4731 Complaint against a regional center, developmental center, or a service provider (like group homes, day programs, or transportation services hired by the regional center).[[§ 4731(b).]]
To file your complaint, write to the director of your regional center. Tell the regional center if you are complaining about the regional center, or a service provider, or both. You can to find the name and address for each regional center director at: https://www.dds.ca.gov/rc/listings/
To file a complaint against Porterville Developmental Center or Canyon Springs, write to the director. Here is the information for Porterville: https://www.dds.ca.gov/services/state-facilities/porterville-dc/
Here is the information for Canyon Springs: https://www.dds.ca.gov/services/state-facilities/canyon-springs/
Your complaint can be a simple note to the director. You can use Supplement O as a guide. Or you can ask an advocate or lawyer to send them a letter.
(10.42) What happens after I file my 4731 complaint?
After you file a 4731 Complaint, the director of the regional center (or developmental center) must investigate and send you a written proposal to resolve the complaint. The director must do this within 20 working days of receiving your complaint.[[§ 4731(b).]]
If you do not agree with the director’s proposal, write to the Director of the Department of Developmental Services (DDS) within 15 working days of receiving the regional center director’s proposal.[[§ 4731(c).]] If you do not refer your complaint to DDS, the director’s proposal goes into effect 20 working days after you get it.[[§ 4731(c). ]]
If you write to DDS, the director of DDS must send you a decision within 45 calendar days.
(10.43) Can I file a 4731 Complaint for a group of people?
If you complain about a practice that is widespread, you can file your Section 4731 Complaint on behalf of more than one consumer, a group, or a class of consumer.[[§ 4731(c).]] For example, if your regional center does not give consumers a list of agreed-upon services at the IPP meeting, you can file a 4731 Complaint on behalf of all consumers of that regional center.
(10.44) Can I get information about other people’s complaints or appeals?
DDS publishes the subject and decision for all Section 4731 Complaints filed every year. If you ask for this information, DDS must give it to you.[[§ 4731(a).]]
For every appeal filed under Section 4700, DDS can tell you:[[§ 4731(d).]]
- If the case was resolved through an informal meeting or mediation.
- If the consumer or regional center refused to have an informal meeting.
- The issue(s) involved in the case.
- The outcome of the case, if there was a fair hearing.
You can also read entire hearing decisions on the Office of Administrative Hearings website, which is: https://www.dgs.ca.gov/OAH/Case-Types/General-Jurisdiction/Resources/DDS-Decisions.
(10.45) What if I have a disagreement with a service provider?
For disagreements with service providers (vendors), you have complaint options. Service providers, like day programs and group homes, cannot get money from the state unless they have a written internal grievance procedure. Ask the service provider for a copy of its grievance procedure to file a grievance.
If you have a problem with a licensed service provider or facility, complain to the licensing agency. The licensing agency inspects and licenses health care facilities to make sure they follow state and federal laws and regulations to protect the health, safety, and personal rights of the people in licensed facilities. The Department of Health Care Services licenses most health care service providers and facilities. The Department of Social Services licenses most community and residential care providers. Each agency has its own complaint procedures. Ask the agency that licenses your service provider for a copy of its complaint procedure for the area where you live. The service provider can tell you who licenses the facility. You can ask an advocate for help with a complaint.
You can also file a 4731 Complaint against a regional center vendor. You file the complaint to the regional center executive director. Tell the director you are complaining about a vendor, and why.