Section 140. Review of determinations made by DBVI

A. An applicant or eligible individual who is dissatisfied with any determination made by DBVI that affects the provision of vocational rehabilitation services may request, or, if appropriate, may request through the individual's representative, a timely review of that determination.

B. General requirements.

1. Notification. DBVI shall provide the applicant, or eligible individual or, as appropriate, the individual's representative, notice of:

a. His right to obtain review of DBVI determinations that affect the provision of vocational rehabilitation through an impartial due process hearing conducted by an impartial hearing officer;

b. His right to informal dispute resolution;

c. His right to pursue mediation with respect to determinations made by DBVI that affect the provision of vocational rehabilitation services to the applicant or eligible individual conducted by an impartial certified mediator;

d. The names and addresses of individuals with whom requests for mediation or due process hearings may be filed;

e. The manner in which a mediator or impartial hearing officer may be selected; and

f. The availability of the client assistance program, established in the disAbility Law Center of Virginia, to assist the applicant or eligible individual during mediation sessions or impartial due process hearings.

2. Timing. DBVI shall provide notice of the review process:

a. At the time the individual applies for vocational rehabilitation services;

b. At the time the individual is assigned to a category in DBVI's order of selection;

c. At the time the IPE is developed; and

d. Whenever vocational rehabilitation services for an individual are reduced, suspended, or terminated.

3. DBVI shall not suspend, reduce, or terminate vocational rehabilitation services provided to an applicant or eligible individual, including evaluation and assessment services and IPE development, pending a decision by a hearing officer, mediator, or informal resolution unless:

a. The individual or, in appropriate cases, the individual's representative, requests a suspension, reduction, or termination of services; or

b. DBVI 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.

C. Informal dispute resolution.

1. DBVI maintains a two-step informal dispute resolution process that is available, at a minimum, whenever an applicant or eligible individual or, as appropriate, the individual's representative, requests an impartial due process hearing under this section.

a. Step 1. If an individual has a complaint or grievance that cannot be resolved in conversation with the DBVI employee, the individual must prepare a written grievance on a grievance form obtainable from DBVI. The grievance form is submitted by the individual to the DBVI employee and the employee's supervisor. The supervisor shall meet with the individual, and as requested, the individual's representative, within a reasonable time not to exceed two weeks of DBVI's receipt of the grievance form. The supervisor shall work with the individual to reach a mutually satisfactory solution to the grievance.

b. Step 2. If the individual's grievance is not resolved in Step 1, the individual may request a meeting with the Deputy Commissioner of DBVI. This request shall be made in writing to the deputy commissioner within two weeks of the Step 1 decision. The deputy commissioner shall meet with the individual and, as requested, the individual's representative within five full working days of receipt of the Step 2 request. The deputy commissioner shall reply in writing to the individual within three full working days following the Step 2 meeting. In the event that the individual's complaint involves the supervisor, the deputy commissioner shall handle the Step 1 meeting, and the commissioner shall handle the Step 2 meeting.

c. Steps 1 and 2 may be conducted in person or by telephone.

2. Participation in the informal dispute resolution process shall be voluntary on the part of the applicant or eligible individual and on the part of DBVI.

3. The informal dispute resolution process shall not be used to deny the right of an applicant or eligible individual to a hearing, including the right to pursue mediation.

4. If informal dispute resolution is not successful in resolving the dispute, a formal hearing shall be conducted within 60 days of the applicant's or eligible individual's request for review of a determination made by DBVI, unless DBVI and the individual agree to a specific extension of time.

D. Mediation.

1. A mediation process shall be made available, at a minimum, whenever an applicant or eligible individual or, as appropriate, the individual's representative requests an impartial due process hearing under this section.

2. Participation in the mediation process shall be voluntary on the part of the applicant or eligible individual and on the part of DBVI.

3. Use of the mediation process shall not be used to deny or delay the applicant's or eligible individual's right to pursue resolution of the dispute through an impartial hearing held within the time period specified in subsection E of this section.

4. The mediation process shall be conducted by a qualified and impartial mediator who shall be selected from a list of qualified and impartial mediators maintained by DBVI.

5. At any point during the mediation process, either party or the mediator may elect to terminate the mediation. In the event mediation is terminated, either party may pursue resolution through an impartial hearing.

6. The applicant or eligible individual or, as appropriate, the individual's representative shall have the opportunity to submit during mediation sessions or due process hearings evidence and other information that supports the applicant's or eligible individual's position.

7. The applicant or eligible individual may be represented during mediation sessions or due process hearings by counsel or other advocates selected by the applicant or eligible individual.

E. Formal due process hearings.

1. If the individual is not satisfied with decisions made during the informal resolution process or through mediation, he may proceed to a formal due process hearing by making a request in writing to the DBVI Vocational Rehabilitation Director.

2. The formal due process hearing shall be conducted by an impartial hearing officer within 60 days of the applicant's or eligible individual's request for review of a determination made by DBVI unless informal resolution or a mediation agreement achieves resolution prior to the 60th day or the parties agree to a specific extension of time.

3. DBVI shall randomly select the impartial hearing officer from a list of qualified hearing officers identified jointly by the State Rehabilitation Council for the Blind and Vision Impaired and the Department for Aging and Rehabilitative Services.

4. The hearing officer shall conduct the formal due process hearing in accordance with this section and federal vocational rehabilitation regulations.

5. In addition to the rights described in this section, the applicant or eligible individual or, if appropriate, the individual's representative shall be given the opportunity to present witnesses during the hearing and to examine all witnesses and other relevant sources of information and evidence.

6. The applicant or eligible individual or, as appropriate, the individual's representative shall have the opportunity to submit during the formal due process hearings evidence and other information that supports the applicant's or eligible individual's position.

7. The applicant or eligible individual may be represented during the formal due process hearings by counsel or other advocates selected by the applicant or eligible individual.

8. Conduct of the formal due process hearing:

a. The hearing officer shall determine the proprietary of attendance at the hearing of those individuals not having a direct interest in the hearing.

b. The hearing officer may, at the beginning of the hearing, ask for statements clarifying the issues involved.

c. Exhibits offered by the applicant or eligible individual may be received by the hearing officer; when received, the exhibits shall be marked and made part of the record.

d. The applicant or eligible individual and his representative and the DBVI employee shall then present claims, proof, and witnesses who shall submit to questions or other examinations. The hearing officer, at his discretion, may vary this procedure but shall present full opportunity to all parties and witnesses for presentation of any material or relevant proof.

e. The parties shall produce such additional evidence as the hearing officer may deem necessary to reach an understanding or determination of the dispute. The hearing officer shall be the judge of relevancy or materiality of the evidence presented in the case. All evidence shall be taken in the presence of the parties.

f. After all evidence has been presented, the hearing officer shall declare the hearing closed.

9. At the conclusion of the formal hearing, the hearing officer shall issue a written decision of his findings of fact and conclusions of law within 30 days of the completion of the formal hearing.

10. The hearing officer's decision shall be a final decision, and the applicant or eligible individual may appeal the hearing officer's decision to a representative from the Governor's office within 20 days of the mailing of the impartial hearing officer's decision.

Historical Notes

Derived from Volume 33, Issue 02, eff. October 19, 2016.

Statutory Authority

§ 51.5-66 of the Code of Virginia.