Chapter 15 Contents:
[REVISED: 4/1/17] DRS shall (per 2014 Public Law 113-128, Section 413 (c) (2) (A) and (B) and
2016 Federal Regulation 34
CFR § 361.57 and 2016 Federal Regulation 34
CFR § 361.18 (e) and 2016 Federal Regulation 34
CFR § 361.43 and State Regulation 22
VAC 30-20-181) inform all VR applicants and clients, in writing and including contact
names and addresses, supplemented with appropriate modes of communication, of
the right to proceed directly to a Hearing, apply to the Client Assistance
Program (CAP) for assistance, request Mediation, and request an Informal
Administrative Review when:- The person applies for VR services. Notice is printed on the
Application RS-5a form.
- An ineligibility determination is made. Notice is printed on
the Notice of Case Closure letters.
- The Individualized Plan for Employment (IPE) is developed or
substantially amended. Notice is printed on the IPE signature sheet
and RS-4b form.
- The case will be closed. Notice is printed on the
Closed-Rehab and Closed-Other letters.
- An Informal Administrative Review is conducted. Notice is
printed on the Informal Administrative Review Decision letter.
- The case is assigned to a priority category if the agency is
operating under an Order Of Selection (see Chapter 2.2, ORDER, Policy
1). Notice is printed on the OOS Closed Categories waiting list
letter.
Notification to non-VR clients receiving DRS services.
- DRS
shall (per 2014 Public Law 113-128, Section 413 (c) (2) (A) and (B) and
2016 Federal Regulation 34 CFR § 361.57
and 2016 Federal Regulation 34 CFR § 361.43)
inform the individual in writing of the right to proceed directly to a
Hearing, apply to the Client Assistance Program (CAP) for assistance, and
request Mediation. The written notice shall include contact names and
addresses to submit the request. Written notice shall (per 2016 Federal Regulation 34 CFR § 361.18
(e)) be supplemented with appropriate modes of communication.
- The
written notice requirement only applies to a) students receiving DRS
pre-employment transition services and b) students and youth receiving DRS
transition services and c) individuals of any age in extended employment
earning subminimum wage who are known to DRS and subject to semi-annual
and annual review. Written notice requirement applies at the time DRS
staff notifies the individual being served that these services will be
reduced, suspended, or terminated. For reduction, suspension or termination
of the semi-annual and annual review, see Chapter 11, CLOSURE, Policy 3
[ REVISED: 4/1/17] Federal law and regulation do not (per federal policy directive
RSA-PD-09-03 and Federal Register, Vol. 66. No. 11, issued January 17, 2001,
Page 4431) define the types of determinations or issues that can be challenged
through Informal Administrative Review, Mediation, or Hearing. Examples of
determinations for appeal include, but are not limited to: - Applicant eligibility for VR services.
- Nature, contents, or scope of the Individualized Plan for Employment (IPE).
- Quality of counseling services, responsiveness, attentiveness, competence, etc. Failure to obtain a change of counselor can be challenged. This does not mean a change in counselor may be the best answer to a real or perceived problem or that DRS should relinquish its responsibility for essential administrative decisions regarding case assignments, caseloads, and effective use of staff time.
- Delivery or quality of other VR services, including usefulness, effectiveness, location, timing, and frequency. Other VR services include (per 2016 Federal Regulation 34
CFR § 361.57) pre-employment transition services to students with disabilities, transition
services to students and youth with disabilities, and semi-annual and annual
review of individuals known to DRS to be in extended employment earning
subminimum wage.
- Cost of services, including DRS funding, refusal to pay for certain services, comparable benefits, fee schedule and maximum allowances, etc.
- Termination of a service, case closure, WWRC dismissal, etc.
[REVISED: 4/1/17] - During Mediation, Informal Administrative Review, Hearing, or
Administrative Review of a Hearing decision, DRS shall not (per 2014 Public Law
113-128, Section 413 (c) (7) and 2016 Federal Regulation 34
CFR § 361.57) suspend, reduce, or terminate any VR services already being provided
by DRS or WWRC or vendors, even if those services are at issue in the appeal,
unless:
-
The client requests a suspension, reduction, or termination of a service; or
-
The service has not yet begun; or
-
DRS or WWRC has evidence that the services have been obtained through client misrepresentation, fraud, collusion, or criminal conduct; or
-
Services are contraindicated by new medical or psychological information obtained by DRS or WWRC (per agency mandate); or
-
DRS or WWRC considers client behavior or actions to be a danger to the health or safety of the client or others, WWRC dismisses a client as a result of a Standards of Conduct disciplinary action, etc. (per agency mandate).
- If the party to the hearing brings an action in court following an
Administrative Review of a Hearing decision, pending review by the court DARS
shall (per 2016 Federal Regulation 34
CFR § 361.57) implement the Hearing decision, including the final decision from an
Administrative Review of a Hearing decision.
[REVISED: 4/1/17] For assistance with VR case and client issues, the supervisor is
available to meet with the individual with a disability and their
representative and counselor, and to staff the case with the counselor. The
district manager is available to assist with issues the supervisor cannot
resolve. Staff may request a policy exception
[REVISED: 4/1/17] The client; the non-VR client who is a student or youth with a disability
receiving pre-employment transition services, or transition services; the
non-VR client known to DRS to be in extended employment earning subminimum wage;
or counselor may contact the Client Assistance Program (CAP) advocates and
attorneys for information about client rights and assistance in resolving
issues with the VR case or VR services, and the individual may apply for CAP
representation during an appeal. CAP services are available at no cost (per 2016
Federal Regulation 34
CFR § 361.57) through disAbility Law Center of Virginia (dLCV), 1512 Willow Lawn
Drive, Suite 100, Richmond VA 23230, (804) 225-2042 (Voice and TTY), or toll
free 1-800-552-3962 (Voice and TTY).
[REVISED: 4/1/17] - Within
60 calendar days (per agency mandate) of a DRS determination or most
recent DRS-client communication regarding a client issue, the client or
counselor may ask the supervisor, verbally or in writing, to conduct an
Informal Administrative Review (IAR) of a counselor determination. If the
determination was rendered to the client by the supervisor, the client or
supervisor may ask the district manager to conduct the IAR. If the
district manager made the decision or participated in the decision, the request
may be made to the DRS Director. Within ten (10) business days (per agency
mandate) after receiving the IAR request, staff conducting the IAR shall
render a written decision to the client and counselor that includes: who
requested the IAR and date, the issue addressed, the decision reached, the
rationale (including any relevant laws, regulations, and DRS policy and
procedure), and (per 2014 P.L. 113-128, Section 413 (c) (2) and 2016 Federal Regulation 34 CFR § 361.57)
the right to proceed directly to a Hearing, apply to CAP for assistance,
and request Mediation. The IAR Decision Letter in AWARE may be used. While
the IAR is pending staff may request a policy exception that would resolve
the issue. The deadline may be extended with client approval. The IAR
decision shall become part of the VR case record.
- At
the discretion of the supervisor, the Informal Administrative Review may
be offered to a non-VR client recipient of DRS pre-employment transition
services, transition services, or individuals receiving semi-annual and
annual reviews in extended employment known to DRS.
[REVISED: 4/1/17]
The VR appeals coordinator shall maintain a list of Supreme Court of
Virginia certified mediators who meet federal qualification requirements (per
2014 Public Law 113-128, Section 413 (c) (4) (C) and 2016 Federal Regulation 34
CFR § 361.57 and 2016 Federal Regulation 34
CFR § 361.5(b)(43)): - Is not a public employee (other than administrative law judge, Hearing
examiner, state office of mediators, or institution of higher education). A
mediator is not considered to be a DARS employee solely by being paid for
Mediation services;
- Is not a member of the DARS State Rehabilitation Council;
- Has not been involved in the vocational rehabilitation of the client;
- Is knowledgeable about the VR program and laws and regulations and policies;
- Has been trained in effective mediation techniques consistent with any
state-approved or –recognized certification, licensing, registration, or other
requirements. Supreme Court of Virginia certified mediators meet this
requirement; and
- Has no personal or professional or financial interest that would
conflict with objectivity
[REVISED: 4/1/17]
- Mediation
supplements, not replaces, counselor and management role in resolving VR
case issues. The client and district manager may consider Mediation when
i) a Hearing is pending (per 2014 P. L. 113-128, Section 413 (c)
(4) (A) and 2016 Federal Regulation 34 CFR § 361.57)
or ii) the issue (per agency mandate) has risen within the past 60
calendar days through the supervisor or from an Informal Administrative
Review (IAR) decision. Mediation is (per 2014 P. L. 113-128, Section 413 (c)
(4) (B) (i)) voluntary. It shall not (per 2014 Public Law 113-128, Section
413 (c) (4) (B) (ii) and 2016 Federal Regulation 34 CFR § 361.57)
be used to deny or delay a Hearing unless the client and district manager
agree in writing to a specific extension of the Hearing deadline. While
Mediation is pending, staff may request a policy exception that would
resolve the issue. Non-negotiable decisions are usually not appropriate
for Mediation. With client and counselor and supervisor agreement and
signature on the RS-8, the district manager sends the Mediation Request
and Confidentiality form (RS-8) to the VR appeals coordinator to initiate
the process. If the district manager turns down a client Mediation
request, the client must be notified of the right to proceed directly to a
Hearing and to apply to CAP for assistance and should be notified of other
avenues to resolve issues.
- Mediation
is an avenue of appeal available to a non-VR client who is a student or
youth with a disability and receives VR pre-employment transition services
or transition services; or individuals of any age in extended employment
earning minimum wage known to DRS and subject to semi-annual and annual
review.
[REVISED: 4/1/17]
- Mediator Selection.
The district manager shall select the lowest cost (per Chapter 14.1, PURCHASING, Policy 6)
mediator from the list provided by the VR appeals coordinator, unless a
higher cost is justified (such as lowest cost vendor cannot schedule a
timely meeting, rotating among vendors with same fee, etc.)
- Representation During Mediation.
The mediator shall (per 2014 P.L. 113-128, Section 413 (c) (3) (B)
and 2016 Federal Regulation 34 CFR § 361.57)
allow the client or non-VR client recipient of VR services and DRS staff
an opportunity to be represented by an attorney or other advocate. The
client or non-VR client recipient of VR services shall be responsible for
client representation costs and shall have the opportunity to apply for
CAP assistance (see Policy 5 of this chapter). A legally incompetent
client must bring a legal guardian to the Mediation.
- Transportation Costs for Mediation.
Subject to DRS Transportation and PAS policies, the counselor may
reimburse the client or non-VR client recipient of VR services, but not
others, for transportation costs to and from the Mediation session.
- Mediator Costs.
DRS shall (per 2014 P.L. 113-128, Section 413 (c) (4) (D) and 2016 Federal Regulation 34 CFR § 361.57
pay the mediator costs. The DRS
local office establishes the mediator as a vendor and processes the
mediator invoice for payment.
- ADA Costs for Mediation.
The client or non-VR client recipient of VR services has the right to
request and receive reasonable accommodations regarding accessibility
under P.L. 101-336 Americans with Disabilities Act of 1990 paid by DRS.
- Scheduling Mediation.
The mediator shall (per 2014 P.L. 113-128, Section 102 (c) (4)
(E) and 2016 Federal Regulation 34 CFR § 361.57)
manage the Mediation process and arrange the date and location of the
Mediation meeting that is convenient to the participants.
- Confidentiality During Mediation.
The participants shall be required to sign a confidentiality pledge.
Notes and discussions, but not threats of bodily harm to self or others,
during the Mediation session shall (per 2014 P.L. 113-128, Section 102 (c)
(4) (G) and 2016 Federal Regulation 34 CFR § 361.57)
be confidential and may not be used as evidence in any subsequent Hearing
or civil proceeding.
- Evidence During Mediation.
Participants may (per 2014 P.L. 113-128, Section 413 (c) (3) (A) and
2016 Federal Regulation 34 CFR § 361.57)
present evidence and other information that supports their position. The
client or non-VR client recipient of VR services may ask the counselor for
one (1) free copy of the VR service record, subject to policies in Chapter 1.1, CONFIDENTIALITY, Policy 1, Section A.
- Written Mediation Agreement.
Any agreement reached by the parties to the dispute in the Mediation
process shall (per 2014 P.L. 113-128, Section 102 (c) (4) (F) be set forth
in a written mediation agreement. The Mediation agreement shall (per agency
mandate) require district manager or supervisor pre-approval. A Mediation
agreement is valid when (per 2016 Federal Regulation 34 CFR § 361.57)
it is signed by the client or non-VR client recipient of VR services and
DRS, and is consistent with federal and state laws and regulations and DRS
policy and procedure. The agreement (per 2016 Federal Regulation 34 CFR § 361.57)
shall become part of the VR service record with a copy to the client or
non-VR client recipient of VR services, and it may be used as evidence in
a Hearing and civil proceeding. It is not a contract. However, the client
and staff are expected to adhere to it, and problems with compliance shall
be handled through any of the established channels to resolve client
issues or to close the case.
- Terminating Mediation.
The mediator or a participant may (per 2016 Federal Regulation 34 CFR § 361.57)
terminate Mediation at any time, and the client or non-VR client recipient
of VR services or district manager may request a Hearing on the client
issue.
[REVISED: 4/1/17] The VR appeals coordinator shall maintain a list of hearing officers who are a notary public as required by Virginia law (per § 47.1-12 of the Code of Virginia) to administer the oath to witnesses and (per 2014 P.L. 113-128, Section 413 (c) (5) (B) and 2016 Federal Regulation 34 CFR § 361.57 and State Regulation 22 VAC 30-20-181) are jointly selected by the State Rehabilitation Council and DARS Commissioner and meet (per 2014 P.L. 113-128, Section 404 (16) and 2016 Federal Regulation 34 CFR § 361.57) federal qualification requirements: - Is not an employee of a public agency (other than an
administrative law judge, Hearing examiner, or employee of an institution
of higher education). An individual is not considered to be an employee of
a public agency solely because the individual is paid by the agency to
serve as a hearing officer;
- Is not a member of the DARS State Rehabilitation Council or DBVI
State Rehabilitation Council;
- Has not been involved previously in the vocational rehabilitation
of the VR client;
- Has knowledge of the delivery of VR services, the State Plan, and
the federal and state regulations governing the provision of services;
- Has received training with respect to the performance of official
duties; and
- Has no personal, professional, or financial interest that would be
in conflict with the objectivity of the hearing officer.
[REVISED: 4/1/17]
- DARS Hearing Request.
Within 60 calendar days (per agency mandate) after Mediation is
terminated without a valid agreement, DRS may (per 2016 Federal Regulation 34 CFR § 361.57)
request a Hearing on the issues.
- Client and non-VR client receiving DRS services Hearing
Request.
The DRS local office or VR appeals coordinator must receive the
signed written request for a Hearing within 60 calendar days (per agency
mandate) after the most recent DRS-client or non-VR client receiving DRS
services communication regarding the issue, date of DRS decision affecting
the case, Informal Administrative Review decision date, or Mediation
refusal to meet/written agreement/termination date. The request may be on
the Request For Hearing form (RS-9) and must include the issue, desired
resolution, dates available for the Hearing, any ADA accommodation
requested, contact information, and client informed written consent for
DRS to provide the hearing officer with client contact and other case
information as exhibits and testimony.
- Hearing Request Acknowledgement.
Staff receiving a written Hearing request shall (per agency
mandate) immediately forward it to the VR appeals coordinator in the Policy and
Legislative Affairs Division for processing. The VR appeals coordinator shall
(per agency mandate) send the consumer a Hearing request acknowledgement,
Hearing process explanation, and Client Assistance Program (CAP) information,
with a copy to appropriate DRS staff.
[REVISED: 3/16/23] - Hearing Officer Selection.
The VR appeals coordinator shall provide the randomly (per 2014 P.L. 113-128,
Section 413 (c) (5) (C) (i) and 2016 Federal Regulation 34
CFR § 361.57) selected hearing officer with the Hearing request, acknowledgment
letter, Hearing deadline and location, and client or non-VR client recipient of
VR services .and DRS designated representative contact information.
- Hearing Officer Disqualification.
The client or non-VR client recipient of VR services or DRS designated
representative may ask the hearing officer to disqualify him- or herself from a
case. The hearing officer must disqualify him- or herself when the hearing
officer believes he or she cannot conduct an impartial Hearing. The VR appeals
coordinator shall then randomly select another hearing officer and the Hearing
process shall begin anew.
- Representation During Hearing.
The hearing officer shall (per 2014 P.L. 113-128, Section 413 (c) (3) (B) and 2016
Federal Regulation 34
CFR § 361.57) allow the client or non-VR client recipient of VR services and DRS to
be represented by counsel or other advocate during the Hearing process and the
client or non-VR client recipient of VR services to apply for Client Assistance
Program (CAP) assistance (see Policy 5 of this chapter). The
client or non-VR client recipient of VR services shall be responsible for any
costs associated with client representation.
- Transportation Costs For Hearings.
Subject to DRS Transportation and PAS policies, the counselor may reimburse the
client or non-VR client recipient of VR services, but not others, for
transportation costs to and from the Hearing.
- Hearing Officer Costs.
DARS shall (per 2016 Federal Regulation 34
CFR § 361.57) pay the hearing officer costs. The hearing officer is hired on agency contract
and the VR appeals coordinator processes the hearing officer invoice for
payment using Central Office funds.
- ADA Costs for Hearing.
The client or non-VR client recipient of VR services has the right to request
and receive reasonable accommodations regarding accessibility under P.L.
101-336 Americans with Disabilities Act of 1990 paid by DRS.
- Communicating With Hearing Officer.
Substantive issues shall not be discussed with the hearing officer off the
record, or outside the Hearing, or without the other party being present. All
communication to and from the hearing officer must (per agency mandate) be in
writing and the hearing officer shall ensure the other party receives a copy. Scheduling
pre-Hearing conferences and Hearings is not a substantive issue.
- Hearing Held at DRS office or WWRC.
The Hearing shall (per agency mandate) be held at the DRS (or WWRC) office
serving the client or non-VR client recipient of VR services, and the DRS
designated representative shall ensure space is reserved for the Hearing. The
hearing officer may change the location for good cause upon request by the
client or non-VR client recipient of VR services or DRS designated
representative.
- Written Notice of Scheduled Hearing.
Within 10 calendar days (per agency mandate) after accepting the case, the
hearing officer shall notify the client or non-VR client recipient of VR
services and DRS designated representative in writing of the Hearing date,
time, place, and rights, with a copy to the VR appeals coordinator. The client or
non-VR client recipient of VR services and DARS have the right (per 2016 Federal Regulation 34
CFR § 361.57 and State Regulation 22
VAC 30-20-181) to be present at the Hearing.
- 60-Day Hearing Deadline and Postponement
While the Hearing is pending, the client or non-VR client recipient of VR
services and district manager may try Mediation (see Policy 7: Section B of this chapter) or meet
to resolve the issue, or the district manager may request a policy exception
that would resolve the issue. The
Hearing officer shall (per 2016 Federal Regulation 34
CFR § 361.57 and State Regulation 22
VAC 30-20-181) ensure a Hearing is conducted within 60 calendar days after the date
any DRS office (or VR appeals coordinator directly) receives the signed written
request unless: the client or non-VR client recipient of VR services withdraws
the Hearing request in writing, the client or non-VR client recipient of VR
services and DRS designated representative agree to a specific extension of
time, or (per agency mandate) the hearing officer grants a postponement request
that will clearly advance the fair presentation or resolution of the issues.
Specific extension of time may be a date or number of days after an event.
Pre-Hearing Conference. The hearing officer, client or non-VR client recipient of VR services, or DRS designated representative may request a pre-Hearing conference to clarify the issues to be addressed at the Hearing or take care of any procedural matters. Procedural matters include scheduling, moving or postponing the Hearing; Hearing On The Written Record; Hearing open to the public; witness and exhibit lists concerns; logistical considerations; and hearing officer disqualification. The hearing officer determines the means (face-to-face, conference call, etc.), schedules, and presides over the pre-Hearing conference. Both parties and their representative must be included. Within 10 calendar days, the hearing officer shall (per agency mandate) document the outcome of the pre-Hearing conference in writing to the participants with a copy to the VR appeals coordinator.
Pre-Hearing VR Case Record Review Subject to Chapter 1.1, CONFIDENTIALITY, Policy 1, Section A, the hearing officer shall (per agency mandate) ensure the client or non-VR client recipient of VR services and DRS representative have an opportunity to review the VR service record before the Hearing. The client or non-VR client recipient of VR services may ask the counselor for one (1) free copy of the VR service record.
- Exhibit and Witness List.
Before the Hearing date, the hearing officer shall (per agency mandate) request
a list of the proposed exhibits and witnesses from the DRS representative and
client or non-VR client recipient of VR services, and rule on any concerns the
client or non-VR client recipient of VR services or DRS representative raises.
The lists should include all exhibits and witnesses (including the client or
non-VR client recipient of VR services) relevant to the Hearing issue(s), even
if listed by the other party because the other party may decide not to use them
at the Hearing. The exhibit lists should identify specific documents and
include author and date for reports, case notes, communications, etc.
- Exhibits.
Exhibits may be submitted before or during (bring two copies) the
Hearing. Post-Hearing submissions are accepted at hearing officer discretion. Exhibits
may include, but are not limited to: VR forms, AWARE screens, purchase
authorizations and cancelations and payment approvals, reports, communications
including e-mails and letters, counseling and guidance and other case notes,
policy, federal and state laws and regulations, federal policy guidance, etc. It
is not necessary to submit the entire VR service record.
- Witnesses.
The client or non-VR client recipient of VR services shall (per agency
mandate) be responsible for any costs associated with his or her witnesses
other than current DARS employees. Because the hearing officer cannot subpoena
witnesses, the DRS representative shall arrange for the presence of all current
staff who are on the DARS, or client or non-VR client recipient of VR services witness
list, or requested to be present by the hearing officer.
- Cancelling the Hearing Request.
The client or non-VR client recipient of VR services may cancel the
Hearing by (per agency mandate) sending a written request to the hearing
officer. The hearing officer dismissal shall (per agency mandate) be in writing
to the client or non-VR client recipient of VR services and DRS representative
with a copy to the VR appeals coordinator.
- Closed Hearing.
All Hearings shall (per agency mandate) be closed to everyone other than
the participants and witnesses unless the hearing officer grants a client or
non-VR client recipient of VR services request for a Hearing open to members of
the public. The hearing officer shall determine who from the public may be
present.
- Testimony and Evidence.
The hearing officer does not (per 2016 Federal Regulation 34
CFR § 361.57) have authority to settle cases. The hearing officer shall preside over
the Hearing; ask if the client or non-VR client recipient of VR services wishes
to precede or follow DRS in presentation order; allow the client or non-VR
client recipient of VR services and DRS to make brief opening and closing
statements, (per 2014 P.L. 113-128, Section 413 (c) (3) (A)) examine and
cross-examine witnesses, and submit and refute written evidence. All testimony
shall be given under oath administered by the hearing officer. Hearsay evidence
is admissible at the discretion of the hearing officer. The hearing officer may
question witnesses; exclude irrelevant, immaterial, insubstantial, privileged,
or repetitive evidence; and introduce any regulation, law, policy directive, or
other material believed to be relevant not otherwise presented by the client or
DARS staff. The client and DRS representative do not have the right to submit
evidence after the Hearing is adjourned unless requested by the hearing
officer. The hearing officer may re-open the Hearing to hear additional witness
testimony and allow for examination or cross examination of the witness.
- Verbatim Recording of Hearing.
The hearing officer shall (per agency mandate) ensure an accurate
verbatim audio recording is made of the Hearing and provide it to the VR
appeals coordinator after the Hearing decision is issued. The DRS
representative shall (per agency mandate) provide staff to operate the
recording equipment. The VR appeals coordinator shall maintain the verbatim
record for 5 years (per DARS records retention schedule with the Library of
Virginia). The client or non-VR client recipient of VR services may receive one
(1) free copy of the verbatim recording to be provided in a format determined
by DARS and ADA compliant.
- No Show and Case Dismissal.
The hearing officer is empowered (per agency mandate) to dismiss the
case if a party, including representative, fail to appear at the scheduled
Hearing, the hearing officer sends a written notice to show cause, and the absent
party does not show good cause that satisfies the hearing officer.
- Hearing On The Written Record Format.
A Hearing On The Written Record is a review of the written evidence by
the hearing officer without in-person testimony. The client, non-VR client
recipient of VR services, or DRS representative may (per agency mandate)request
a Hearing On The Written Record in writing or during the pre-Hearing
conference. The hearing officer may grant the request when the hearing officer
believes that it will not impede a full examination of the issue(s). The
hearing officer shall provide at least a 10 working-day deadline for the party
requesting the written record format to submit written evidence and 10
working-day deadline for the other party to submit a written rebuttal, and
shall ensure the other party receives a copy of all submissions. To facilitate
a fair presentation of the issues, the hearing officer may ask the parties to
submit additional written evidence of a specified nature. If the Hearing On The
Written Record process is not conducive to a full examination of the issue(s),
the hearing officer may discontinue the review and schedule a Hearing.
- Hearing Decision.
The hearing officer shall have authority to render a written decision
and (per 2014 P.L. 113-128, Section 413 (c) (5) (A) required action regarding
the client vocational rehabilitation services. The hearing officer shall (per 2016
Federal Regulation 34
CFR § 361.57) issue and mail a written decision to the client or non-VR client recipient of
VR services and DARS commissioner within 30 calendar days after the Hearing.
For a Hearing On The Written Record, the hearing officer shall render and mail the
written decision within 90 calendar days of the date the DRS local office (or
VR appeals coordinator directly) received the written Hearing request. The
decision shall (per 2016 Federal Regulation 34
CFR § 361.57) become part of the VR service record. The decision shall include the parties
right within (per 2014 P.L. 113-128, Section 413 (c) (5) (E) and 2016 Federal Regulation 34
CFR § 361.57) 20 calendar days of the mailing of the hearing officers decision to request in writing an Administrative Review of a
Hearing decision (See Policy 9 of this
chapter.) A Hearing decision is final and DRS shall implement it within 30
calendar days after the decision date (per agency mandate), unless one or both
parties requests an Administrative Review of a Hearing decision.
-
Distribution of Hearing Decision.
The VR appeals coordinator shall send a redacted copy of the decision to
(per 2014 P.L. 113-128, Section 412 (a) (21) (A) (ii) (IV) (cc)) the State
Rehabilitation Council, to (per 2016 Federal Regulation 34
CFR § 361.57 (k)) RSA attached to the RSA-722 annual appeals report, and to (per
agency mandate) the other hearing officers.
[REVISED: 3/16/23] - Request for Administrative Review of Hearing Decision
Within 20 calendar days of the mailing of the impartial hearing officer’s decision (per 2014 P.L.
113-128, Section 413 (c) (5) (E) and 2016 Federal Regulation 34
CFR § 361.57), the client, non-VR client recipient of VR services, or DRS
representative may request an Administrative Review of the Hearing decision. The
review is a paper review by (per 2014 P.L. 113-128, Section 413 (c) (5) (D)
(ii)) a designated official from the Office of the Governor. The request must
(per agency mandate):
-
Be written,
-
State the specific decision(s) of the hearing officer to be reviewed and
may include (per 2014 P.L. 113-128, Section 413 (c) (5) (F) (i)) additional
information/evidence supporting the request. It is not necessary to submit the
Hearing exhibits,
-
Not include new issues, and
-
Be submitted to the VR appeals coordinator who will forward it and notice of the rebuttal and decision deadline to the reviewing official and the other party, and provide the reviewing official a copy of the Hearing decision and exhibits.
- Rebuttal.
The party not requesting the Administrative Review of a Hearing decision
may submit a written rebuttal, which may (per 2014 P.L. 113-128, Section 413
(c) (5) (F) (i)) include additional information/evidence within (per agency
mandate) ten (10) calendar days to the VR appeals coordinator to be forwarded
to the reviewing official and other party.
- Standards of Review for Administrative Review of a Hearing Decision.
-
The reviewing official shall make an independent, final decision and
shall not (per 2014 P.L. 113-128, Section 413 (c) (5) (F) (iv)) and 2016 Federal Regulation 34
CFR § 361.57) delegate the responsibility for making the decision to any DARS staff.
-
The reviewing official shall (per 2014 P.L. 113-128, Section 413 (c)
(5)) and 2016 Federal Regulation 34
CFR § 361.57) provide the client or non-VR client recipient of VR services and DARS
an opportunity to submit additional written evidence and information relevant
to the final decision.
-
The reviewing official shall (per 2016 Federal Regulation 34
CFR § 361.57) review the entire Hearing record (decision and exhibits), and ensure
that the Hearing decision complies with the approved DARS state plan, the
Rehabilitation Act of 1973 as amended in2014, federal vocational rehabilitation
regulations, state law and regulations, and agency policies and procedures
which are consistent with federal requirements, and the U.S. and Virginia
Constitutions. The review will consider all relevant issues of fact, law and
written procedures. If the review issue involves questions of federal or state
law, regulation or procedures, the reviewing official may consult with
appropriate federal officials and the Virginia Office of the Attorney General
and consider their interpretations.
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Within 30 calendar days after receiving the request (per 2016 Federal Regulation 34
CFR § 361.57), the reviewing official shall send a written decision and the
statutory, regulatory or policy grounds for the decision to the client and DARS
commissioner, with a copy to the VR appeals coordinator to be forwarded to the DRS
director, district manager, counselor, and supervisor for implementation. The decision shall become part of the VR service
record.
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The reviewing official may affirm, modify or reverse the Hearing
decision in whole or in part or refer/remand the case back to the hearing
officer for further proceedings. The reviewing official shall not (per 2014
P.L. 113-128, Section 413 (c) (5) (F) (ii) and 2016 Federal Regulation 34
CFR § 361.57) overturn or modify a Hearing decision, or part of a Hearing decision,
that supports the client or non-VR client recipient of VR services position,
unless concluding, based on clear and convincing evidence, that the Hearing
decision is clearly erroneous on the basis of being contrary to the approved
DRS state plan, the Rehabilitation Act of 1973 as amended in 2014, federal
vocational rehabilitation regulations, or state regulations or agency policies
which are consistent with federal requirements. The reviewing official may
reverse or remand it when finding the Hearing decision to be
- In violation of constitutional, statutory, regulatory, or written policy provisions; or
- In excess of the statutory authority of the agency; or
- Made upon unlawful procedures; or iv. Affected by other errors of law, regulation, or written policy; or v. Not reasonably supported by the evidence; or vi. Arbitrary, capricious, or characterized by abuse of, or clearly unwarranted, exercise of discretion.
- Implementing Reviewing Official Decision.
Within 30 calendar days (unless the decision specified another time
frame) after the reviewing official issues the Administrative Review decision,
DARS shall (per 2014 P.L. 113-128, Section 413 (c) (5) (I)) implement the
decision, regardless of whether the client or non-VR client recipient of VR
services or DARS files a civil action.
- Distribution of Reviewing Official Decision.
The VR appeals coordinator shall send a redacted copy of the reviewing
official Administrative Review decision to the State Rehabilitation Council
(per 2014 P.L. 113-128, Section 412 (a) (21) (A) (ii) (IV) (cc)), to RSA (per 2016
Federal Regulation 34
CFR § 361.57 (k)) attached to the RSA-722 annual appeals report, and to (per agency
mandate) the other hearing officers for informational and training purposes.
[REVISED: 6/1/13] See
Chapter 14.1, PURCHASING, Policy 1.
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