Section 181. Review of rehabilitation counselor or coordinator determinations

A. The designated state unit must establish and implement procedures, including standards of review under subsection D of this section, established by the Commissioner of the Department for Aging and Rehabilitative Services to ensure that any applicant or eligible individual who is dissatisfied with any determinations made by a rehabilitation counselor or coordinator concerning the furnishing or denial of services may request, or, if appropriate, may request through the individual's representative, a timely review of those determinations. The procedures established by the Commissioner of the Department for Aging and Rehabilitative Services must be in accordance with this section.

B. Informal resolution. The Department for Aging and Rehabilitative Services may establish an informal process to resolve a request for review without conducting mediation or a formal hearing. However, the informal process must not be used to deny the right of an applicant or eligible individual to a hearing under subsection D of this section or mediation under subsection C of this section. The informal resolution or the mediation process or both must be conducted and concluded within the time period established under subdivision D 1 of this section for holding a formal hearing. If neither the informal resolution nor mediation is successful, a formal hearing must be conducted by the end of this same period, unless the parties agree to a specific extension of time.

C. The department shall establish mediation procedures that allow an applicant or eligible individual and the state unit to resolve disputes. The procedures shall provide that:

1. The mediation process is conducted by a qualified and impartial mediator as defined in 22VAC30-20-10 who must be selected from a list of qualified and impartial mediators maintained by the state;

2. Mediation be available, at a minimum, whenever an applicant, eligible individual or, as appropriate, the individual's representative requests an impartial due process hearing under this section;

3. Participation in the mediation process is voluntary on the part of the applicant or eligible individual, as appropriate, and on the part of the state unit;

4. The mediation process not be used to deny or delay the applicant or eligible individual's right to pursue resolution of the dispute through a formal hearing process in the time specified in subsection D of this section or any other rights provided under this part;

5. Either party or the mediator may elect to terminate mediation at any time and pursue resolution through a formal hearing if desired;

6. Mediation sessions are scheduled and conducted in a timely manner and held in a location and manner convenient to the parties in dispute;

7. Discussions that occur during mediation remain confidential and may not be used as evidence in any subsequent due process hearing or civil proceeding and parties may be required to sign a confidentiality pledge prior to mediation;

8. Any agreement reached by the parties to the dispute will be described in a written mediation agreement that is developed by the parties with the assistance of the mediator, signed by both parties, with a copy given to both parties; and

9. The cost of the mediation process will be paid by the state, but the state is not required to pay for any costs related to the representation of an applicant or eligible individual.

D. The department shall establish formal review procedures that provide that:

1. A hearing by an impartial hearing officer, selected in accordance with subsection E of this section, must be held within 60 days of an individual's request for review, unless informal resolution is achieved prior to the 60th day or the parties agree to a specific extension of time;

2. The department may not institute a suspension, reduction, or termination of services being provided under an individualized plan for employment pending a final determination of the formal hearing under this subdivision, informal resolution under subsection B of this section, or mediation under subsection C of this section unless the individual or, in an appropriate case, the individual's representative so requests or the agency has evidence that the services have been obtained through misrepresentation, fraud, collusion, or criminal conduct on the part of the individual or the individual's representative;

3. The individual or, if appropriate, the individual's representative must be afforded an opportunity to present additional evidence, information, and witnesses to the impartial hearing officer, to be represented by counsel or other appropriate advocate, and to examine all witnesses and other relevant sources of information and evidence;

4. The impartial hearing officer shall make a decision based on the provisions of the approved state plan, the federal Rehabilitation Act of 1973 as amended (the Act), federal vocational rehabilitation regulations, and state regulations and policies that are consistent with federal requirements and shall provide to the individual or, if appropriate, the individual's representative and to the commissioner a full written report of the findings and grounds for the decision within 30 days of the completion of the hearing;

5. The hearing officer's decision is final, except that a party may request an impartial review under subdivision 6 of this subsection if the state has established procedures for review, and a party involved in a hearing may bring a civil action under subsection H of this section;

6. The state may establish procedures to enable a party who is dissatisfied with the decision of the impartial hearing officer to seek an impartial administrative review of the decision consistent with 34 CFR 361.57;

7. Except for the time limitations established in subdivision 1 of this subsection, each state's review procedures may provide for reasonable time extensions for good cause shown at the request of a party or at the request of both parties.

E. Selection of impartial hearing officers. The impartial hearing officer for a particular case must be selected (i) from among the pool of persons qualified to be an impartial hearing officer, as defined in 34 CFR 361.5(b)(22) and 29 USC § 722(b) and (d), who are identified jointly by the Department for Aging and Rehabilitative Services and those members of the State Rehabilitation Council designated in § 102(d)(2)(C) of the Act (29 USC § 722(b) and (d)) and (ii) on a random basis.

F. Informing affected individuals. The department shall inform, through appropriate modes of communication, all applicants and eligible individuals of:

1. Their right to review under this section, including the names and addresses of individuals with whom appeals may be filed; and

2. The manner in which an impartial hearing officer will be selected consistent with the requirements of subsection E of this section.

G. Implementation of final decisions. If a party brings a civil action under subsection H of this section to challenge the final decision of a hearing officer under subsection D of this section or to challenge the final decision of a state reviewing official under subsection D of this section, the final decision of the hearing officer or state reviewing official must be implemented pending review by the court.

H. Civil action. Any party who disagrees with the findings or decisions of an impartial hearing officer under subdivision D 4 of this section if the state that has not established administrative review procedures under subdivision D 6 of this section, and any party who disagrees with the findings and decision under subdivision D 6 of this section, if the state has established an administrative review procedure, has a right to bring civil action with respect to the matter in dispute. The action may be brought in any state court of competent jurisdiction or in a district court of the United States of competent jurisdiction without regard to the amount in controversy. In any action brought under this section, the court receives the records related to the impartial due process hearing and the records related to the administrative review, if applicable; hears additional evidence at the request of a party; and basing its decision on the preponderance of the evidence, grants the relief that the court determines to be appropriate.

Historical Notes

Derived from Volume 13, Issue 21, eff. August 6, 1997; amended, Virginia Register Volume 17, Issue 07, eff. January 17, 2001; Volume 19, Issue 14, eff. April 24, 2003; Volume 28, Issue 24, eff. August 30, 2012.

Statutory Authority

§ 51.5-131 of the Code of Virginia.