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REGULATIONS
Vol. 32 Iss. 10 - January 11, 2016TITLE 22. SOCIAL SERVICESDEPARTMENT FOR THE BLIND AND VISION IMPAIREDChapter 50Proposed RegulationTitles of Regulations: 22VAC45-50. Regulation Governing Provisions of Services in Vocational Rehabilitation (repealing 22VAC45-50-10 through 22VAC45-50-150).
22VAC45-51. Regulations Governing Provisions of Services in Vocational Rehabilitation (adding 22VAC45-51-10 through 22VAC45-51-140).
Statutory Authority: § 51.5-66 of the Code of Virginia.
Public Hearing Information: No public hearings are scheduled.
Public Comment Deadline: March 11, 2016.
Agency Contact: Susan D. Payne, Program Director, Vocational Rehabilitation, Department for the Blind and Vision Impaired, 397 Azalea Avenue, Richmond, VA 23227, telephone (804) 371-3184, FAX (804) 371-3351, TTY (804) 371-3140, or email susan.payne@dbvi.virginia.gov.
Basis: Section 51.5-65 of the Code of Virginia authorizes the Commissioner of the Department for the Blind and Vision Impaired to promulgate regulations to carry out the applicable provisions of Title 51.1 (Persons with Disabilities) of the Code of Virginia.
Purpose: This proposed action repeals existing regulations (22VAC45-50) concurrently with promulgating new regulations (22VAC45-51) to update Virginia's Regulations Governing Provision of Services in Vocational Rehabilitation. The action ensures that blind, visually impaired, and deafblind citizens receiving vocational rehabilitation services from the department have accurate and clearly articulated regulations regarding vocational rehabilitation services that are consistent with federal regulations.
Substance: 22VAC45-50 is outdated and subsequently inconsistent with federal regulations. 22VAC45-51 conforms existing regulations to the federal regulations at 34 CFR Part 361, incorporates the name changes for two agencies, removes Department for the Blind and Vision Impaired policy language, removes one section that is not necessary to ensure compliance with federal regulations, separates one section into two separate sections to provide greater clarity, and combines two other sections that are duplicative.
Issues: The proposed regulatory action poses no disadvantages to the public or the Commonwealth. Blind, visually impaired, and deafblind citizens, their family members, consumer groups, state and local government entities, and others in the Commonwealth benefit from the promulgation of new regulations that are clearer, so easier to understand, and provide an accurate explanation of the vocational rehabilitation services available to eligible Virginians.
Department of Planning and Budget's Economic Impact Analysis:
Summary of the Proposed Amendments to Regulation. The Commissioner for the Department of Blind and Vision Impaired (DBVI) proposes to repeal the Department's regulation that governs vocational rehabilitation services (22VAC45-50) and replace it with a regulation (22VAC45-51) that has been reorganized and updated and that additionally has one substantive change. Specifically, the Commissioner proposes to repeal language which specifically mentions provision of services for American Indians.
Result of Analysis. Benefits outweigh costs for all proposed regulatory changes.
Estimated Economic Impact. The current regulation that governs DBVI's provision of vocational rehabilitation services was last amended in 1990. Since then, much of the language in the regulation has become obsolete including the name of the agency the Commissioner heads, which used to be known as the Department for the Visually Handicapped. Because this regulation is so substantially out-of-date, the Commissioner now proposes to repeal it and promulgate a new regulation that updates and reorganizes sections so that information is easier to find. No entity is likely to incur costs on account of this reorganization; all affected entities are likely to benefit from having this regulation updated so that it correctly reflects terminology that has changed since 1990 as this will reduce possible confusion.
The Commissioner also proposes to repeal language in current regulation which specifies that American Indians will be provided vocational rehabilitation services to the same extent, and in the same fashion, as other eligible individuals (this language is in 22VAC45-50-70). DBVI staff reports that this language is being removed because it only applies to federally recognized Indian tribes and Virginia has no such tribes. The newly promulgated regulation will retain language that prohibits discrimination against any individual who seeks vocational rehabilitation services. Because of this, no American Indian who is a citizen of the Commonwealth, and is also a citizen of a federally recognized Indian tribe based in another state, is likely to be denied services on account of the repeal of 22VAC45-50-70.
Businesses and Entities Affected. These proposed regulatory changes will affect all individuals who receive vocational rehabilitation services through DBVI. There are currently approximately 1,400 such individuals in the Commonwealth.
Localities Particularly Affected. No locality will be particularly affected by these proposed regulatory changes.
Projected Impact on Employment. These proposed regulatory changes are unlikely to significantly affect employment.
Effects on the Use and Value of Private Property. These proposed regulatory changes are unlikely to affect the use and value of private property.
Small Businesses: Costs and Other Effects. No small business in the Commonwealth is likely to incur costs on account of these proposed regulatory changes.
Small Businesses: Alternative Method that Minimizes Adverse Impact. No small business in the Commonwealth is likely to incur costs on account of these proposed regulatory changes.
Real Estate Development Costs. These proposed regulatory changes are unlikely to affect real estate development costs.
Agency's Response to Economic Impact Analysis: As indicated in DBVI's agency statement as modified on October 23, 2013, and the Department of Planning and Budget economic impact analysis as modified on April 7, 2014, DBVI's proposed regulations do not cause DBVI to incur any additional cost to implement and enforce the proposed regulations since the existing regulation (22VAC45-50, Regulation Governing Provision of Services in Vocational Rehabilitation) is already in effect and enforced, and there will be no additional cost incurred by individuals, businesses, or other entities. It is unlikely that additional costs will be incurred by any entity. All affected entities are likely to benefit from having this regulation updated so that it correctly reflects terminology that has changed since 1990 as this will reduce possible confusion.
Entities affected by the overall proposed regulations, without regard to costs incurred as stated earlier, include individuals who are blind and visually impaired applying for or receiving vocational rehabilitation services, approximately 1,450 individuals annually. The newly promulgated regulation will retain language that prohibits discrimination against any individual who seeks vocational rehabilitation services.
Summary:
The proposed action replaces existing regulations governing vocational rehabilitation services (22VAC45-50) with new regulations (22VAC45-51) that are reorganized and updated to comport with federal requirements, remove duplicative provisions, and remove agency policy language. In addition, the language pertaining to provision of services for American Indians is repealed because the language only applies to federally recognized Indian tribes and Virginia has no such tribes.
CHAPTER 51
REGULATIONS GOVERNING PROVISION OF SERVICES IN VOCATIONAL REHABILITATION22VAC45-51-10. Definitions.
The following words and terms when used in this chapter shall have the following meanings, unless the context clearly states otherwise:
"Applicant" means an individual who submits an application for vocational rehabilitation services.
"Appropriate modes of communication" means specialized aids and supports that enable an individual with a disability to comprehend and respond to information that is being communicated. Appropriate modes of communication include, but are not limited to, the use of interpreters, open and closed captioned videos, specialized telecommunication services and audio recordings, Brailed and large print materials, materials in electronic formats, augmentative communication devices, graphic presentations, and simple language materials.
"Assistive technology device" means any item, piece of equipment, or product system, whether acquired commercially off the shelf, modified, or customized, that is used to increase, maintain, or improve the functional capabilities of an individual with a disability.
"Assistive technology service" means any service that directly assists an individual with a disability in the selection, acquisition, or use of an assistive technology device including:
1. The evaluation of the needs of an individual with a disability, including a functional evaluation of the individual in his customary environment;
2. Purchasing, leasing, or otherwise providing for the acquisition by an individual with a disability of an assistive technology device;
3. Selecting, designing, fitting, customizing, adapting, applying, maintaining, repairing, or replacing assistive technology devices;
4. Coordinating and using other therapies, interventions, or services with assistive technology devices, such as those associated with existing educational and rehabilitation plans and programs;
5. Training or technical assistance for an individual with a disability or, if appropriate, the family members, guardians, advocates, or authorized representatives of the individual; and
6. Training or technical assistance for professionals (including individuals providing education and rehabilitation services), employers, or others who provide services to, employ, or are otherwise substantially involved in the major life functions of individuals with disabilities to the extent that training or technical assistance is necessary to the achievement of an employment outcome by an individual with a disability.
"Blind" means having not better than 20/200 central visual acuity in the better eye measured at 20 feet with correcting lenses or having visual acuity greater than 20/200 but with the widest diameter of the visual field in the better eye subtending an angle of no greater than 20 degrees, measured at a distance of 33 centimeters using a three-millimeter white-test object, a Goldman III-4e target, or other equivalent equipment. Such blindness shall be certified by a duly licensed physician or optometrist. (§ 51.5-60 of the Code of Virginia)
"Client assistance program" means the program located within the disAbility Law Center of Virginia for the purpose of advising applicants or eligible individuals about all available services under the Rehabilitation Act, as amended by the Workforce Innovation and Opportunity Act of 2014 (29 USC § 3101 et seq.), as amended, and to assist them in their relationship with programs, projects, and facilities providing rehabilitation services.
"Community rehabilitation program" means a program that provides directly or facilitates the provision of one or more of the allowable vocational rehabilitation services to individuals with disabilities to enable those individuals to maximize their opportunities for employment, including career advancement.
"Comparable services and benefits" means services and benefits that are (i) provided or paid for, in whole or in part, by other federal, state, or local public agencies, by health insurance, or by employee benefits; (ii) available to the individual at the time needed to ensure the progress of the individual toward achieving the employment outcome in the individual's individualized plan for employment and (iii) commensurate to the services that the individual would otherwise receive from the designated state vocational rehabilitation agency. For the purposes of this definition, comparable benefits do not include awards and scholarships based on merit.
"Competitive employment" means work in the competitive labor market that is performed on a full-time or part-time basis in an integrated setting and for which an individual is compensated at or above the minimum wage, but not less than the customary wage and level of benefits paid by the employer for the same or similar work performed by individuals who are not disabled.
"DBVI" means the Department for the Blind and Vision Impaired.
"Eligible individual" means an applicant for vocational rehabilitation services who meets the eligibility requirements in 22VAC45-51-40.
"Employment outcome" means, with respect to an individual, entering or retaining full-time or, if appropriate, part-time competitive employment in the integrated labor market to the greatest extent practicable, supported employment, or any other type of employment, including self-employment, telecommuting, or business ownership, that is consistent with an individual's strengths, resources, priorities, concerns, abilities, capabilities, interests, and informed choice.
"Extended employment" means work in a nonintegrated or sheltered setting for a public or private nonprofit agency or organization that provides compensation in accordance with the Fair Labor Standards Act (29 USC § 201 et seq.) and any needed support services to an individual with a disability to enable the individual to continue to train or otherwise prepare for competitive employment, unless the individual through informed choice chooses to remain in extended employment.
"Extended services," as used in the definition of "supported employment," means ongoing support services and other appropriate services that are needed to support and maintain an individual with a most significant disability in supported employment and that are provided by a state agency, a private nonprofit organization, an employer, or any other appropriate resource from funds other than funds received under 34 CFR Part 361 and 34 CFR Part 363 after an individual with a most significant disability has made the transition from support provided by DBVI.
"Family member" for the purposes of receiving vocational rehabilitation services means an individual who is either a relative or guardian of an applicant or eligible individual or lives in the same household as an applicant or eligible individual who has a substantial interest in the well-being of that individual and whose receipt of vocational rehabilitation services is necessary to enable the applicant or eligible individual to achieve an employment outcome.
"Financial need test" means the test developed by DBVI and used to consider the financial need of applicants or eligible individuals with blindness or visual impairment for the purpose of determining the extent of their participation in the costs of vocational rehabilitation services.
"Impartial hearing officer" means an individual who is not an employee of a public agency other than an administrative law judge, hearing examiner, or employee of an institution of higher education; is not a member of the State Rehabilitation Council for the Blind and Vision Impaired; has not been involved previously in the vocational rehabilitation of the applicant or eligible individual; has knowledge of the delivery of vocational rehabilitation 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 individual. An individual is not considered to be an employee of DBVI for the purposes of this definition solely because the individual is paid by the DBVI to serve as a hearing officer (34 CFR 361.5(b)(25)).
"Individual's representative" means any representative chosen by an applicant or eligible individual, as appropriate, including a parent, guardian, other family member, or advocate, unless a representative has been appointed by a court to represent the individual, in which case the court-appointed representative is the individual's representative.
"Individual with a most significant disability" means an individual who has no functional vision or is significantly visually impaired; has a secondary disability that profoundly limits two or more life activities, such as mobility, communication, self-care, interpersonal skills, self-direction, work tolerance, or work skills in terms of achieving an employment outcome; and the individual's vocational rehabilitation is expected to require three or more vocational rehabilitation services for one year or more.
"Individual with a significant disability" means the significant visual impairment does not enable the individual to obtain a driver's license in Virginia with normal correction; "seriously limits" one or more life activities, such as mobility, communication, self-care, interpersonal skills, self-direction, work tolerance, or work skills, in terms of achieving an employment outcome; and the individual's vocational rehabilitation shall require two or more substantial vocational rehabilitation services for a minimum of three months.
"Individualized plan for employment" or "IPE" means a unique plan for employment that is customized for each eligible individual receiving vocational rehabilitation services.
"Integrated setting," with respect to the provision of services, means a setting typically found in the community in which applicants or eligible individuals interact with nondisabled individuals, other than nondisabled individuals who are providing services to those applicants or eligible individuals, to the same extent that nondisabled individuals in comparable positions interact with other persons.
"Maintenance" means monetary support provided to an individual for expenses, such as food, shelter, and clothing, that are in excess of the normal expenses of the individual and that are necessitated by the individual's participation in an assessment for determining eligibility and vocational rehabilitation services under an individualized plan for employment.
"Mediation" means the act or process of using an independent third party to act as a mediator, intermediary, or conciliator to assist persons or parties in settling differences or disputes prior to pursuing formal administrative or other remedies.
"One-stop center" means a center designed to provide a full range of assistance to job seekers under one roof. Established under the Workforce Innovation and Opportunity Act of 2014 (29 USC § 3101 et seq.), the centers offer training, career counseling, job listings, and similar employment-related services.
"On-the-job training" means job training received in a real work environment for individuals who are job ready.
"Ophthalmologist" means a physician specializing in diseases of the eye.
"Optometrist" means any person practicing the profession of optometry as defined by § 54.1-3200 of the the Code of Virginia and regulations of the Board of Optometry (18VAC105-20).
"Order of selection" means the order defined in the state plan for vocational rehabilitation services that DBVI shall follow in selecting eligible individuals to be provided vocational rehabilitation services when DBVI determines that it is unable to provide the full range of vocational rehabilitation services to all eligible individuals.
"Personal assistance services" means a range of services provided by one or more persons designed to assist an individual with a disability to perform daily living activities on or off the job that the individual would typically perform without assistance if the individual did not have a disability. The services shall be designed to increase the individual's control in life and ability to perform everyday activities on or off the job. These services shall be necessary to the achievement of an employment outcome and may be provided only while the individual is receiving other vocational rehabilitation services. These services may include training in managing, supervising, and directing personal assistance services.
"Personal information" means all information that describes, locates, or indexes anything about an individual including (i) social security number, driver's license number, agency-issued identification number, student identification number, or real or personal property holdings derived from tax returns and (ii) education, financial transactions, medical history, or employment record.
"Post-employment services" means one or more of the services identified in 22VAC45-51-80 that are provided subsequent to the achievement of an employment outcome and that are necessary for an individual to maintain, regain, or advance in employment, consistent with the individual's strengths, resources, priorities, concerns, abilities, capabilities, interests, and informed choice.
"Profoundly limits" means the individual is unable to use vision (with or without visual aids) to assist him in performing such functions as mobility, communication, self-care, interpersonal skills, self-direction, work tolerance, or work skills and the individual has not acquired the adaptive skills to compensate for the lack of functional vision.
"Qualified and impartial mediator" means an individual who is not an employee of a public agency other than an administrative law judge, hearing examiner, employee of a state office of mediators, or employee of an institution of higher education; is not a member of the State Rehabilitation Council for the Blind and Vision Impaired; has not been involved previously in the vocational rehabilitation of the applicant or eligible individual; is knowledgeable of the vocational rehabilitation program and the applicable federal and state laws, regulations, and policies governing the provision of vocational rehabilitation services; has been trained in effective mediation techniques consistent with any state-approved or recognized certification, licensing, registration, or other requirements; and has no personal, professional, or financial interest that would be in conflict with the objectivity of the individual during the mediation proceedings. An individual serving as a mediator is not considered to be an employee of DBVI for the purposes of this definition solely because the individual is paid by DBVI to serve as a mediator.
"Rehabilitation technology" means the systematic application of technologies, engineering methodologies, or scientific principles to meet the needs of, and address the barriers confronted by, individuals with disabilities in areas that include education, rehabilitation, employment, transportation, independent living, and recreation. The term includes rehabilitation engineering, assistive technology devices, and assistive technology services.
"Seriously limits" means an individual has some functional vision (with or without visual aids) that is used by the individual in performing such functions as mobility, communication, self-care, interpersonal skills, self-direction, work tolerance, or work skills and the individual has not acquired the adaptive skills to compensate for the limited functional vision.
"Significant visual impairment" means vision worse than 20/70 in the better eye with correction or a field of vision restricted to less than 70 degrees in the better eye.
"Supported employment" means (i) competitive work in an integrated setting or employment in integrated work settings in which individuals are working toward competitive employment, consistent with the strengths, resources, priorities, concerns, abilities, capabilities, interests, and informed choice of the individual with ongoing support services for individuals with the most significant disabilities for whom competitive employment has not traditionally occurred or for whom competitive employment has been interrupted or intermittent as a result of a significant disability, and who, because of the nature and severity of their disabilities, need intensive supported employment services from DBVI and extended services after transition to perform this work or (ii) transitional employment for individuals with the most significant disabilities due to mental illness.
"Transition services" means a coordinated set of activities for a student designed within an outcome-oriented process that promotes movement from school to post-school activities, including post-secondary education, vocational training, and integrated employment (including supported employment), continuing adult education, adult services, independent living, or community participation.
"Transportation" means travel and related expenses that are necessary to enable an applicant or eligible individual to participate in a vocational rehabilitation service, including expenses for training in the use of public transportation vehicles and systems.
"Vocational rehabilitation services" or "services" means goods and services that are available to assist the individual with a disability in preparing for, securing, retaining, or regaining an employment outcome that is consistent with the individual's strengths, resources, priorities, concerns, abilities, capabilities, interests, and informed choice as described in 22VAC45-51-70 and 34 CFR 361.48.
"Work adjustment training" means a training process utilizing individual and group work or work-related activities to assist individuals in understanding the meaning, value, and demands of work; to modify or develop attitudes, personal characteristics, and work behavior; and to develop functional capacities, as required, in order to assist individuals toward their optimum level of vocational development.
22VAC45-51-20. Protection, use, and release of personal information (34 CFR 361.38).
A. General provisions. DBVI shall safeguard the confidentiality of all personal information, including photographs and lists of names to ensure that:
1. Current and stored personal information is protected;
2. All applicants and eligible individuals and, as appropriate, those individuals' representatives, service providers, cooperating agencies, and interested persons are informed through appropriate modes of communication of the confidentiality of personal information and the conditions for accessing and releasing this information;
3. All applicants or their representatives are informed about DBVI's need to collect personal information and the policies governing its use including:
a. The purposes for which DBVI intends to use or release the information;
b. An explanation of whether providing requested information is mandatory or voluntary and the effects of not providing requested information;
c. Identification of those situations in which DBVI requires or does not require the informed written consent of the individual before information may be released; and
d. Identification of other agencies to which information is routinely released; and
4. An explanation of DBVI policies and procedures affecting personal information shall be provided to each individual in that individual's native language or through the appropriate mode of communication.
B. All personal information in the possession of DBVI shall be used only for the purposes directly connected with the administration of the DBVI vocational rehabilitation program. Information containing identifiable personal information shall not be shared with advisory or other bodies that do not have official responsibility for the administration of the program. In the administration of the program, DBVI may obtain personal information from service providers and cooperating agencies under assurances that the information shall not be further disclosed except as described in subsection A of this section.
C. Release to applicants and eligible individuals.
1. When requested in writing, DBVI shall make all requested information in that individual's record of vocational rehabilitation services accessible to and shall release the information to the individual or the individual's representative promptly.
2. Medical, psychological, or other information that DBVI determines may be harmful to the individual shall not be released directly to the individual but shall be provided to the individual through a third party chosen by the individual, which may include an advocate, family member, or medical or mental health professional. If a representative has been appointed by a court to represent the individual, the information shall be released to the court-appointed representative.
3. Personal information obtained by DBVI from another agency or organization may be released only by, or under conditions established by, the other agency or organization.
D. Release for audit, evaluation, and research. DBVI may release personal information to an organization, agency, or individual engaged in audit, evaluation, or research only for purposes directly connected with the administration of the vocational rehabilitation program, or for purposes that would significantly improve the quality of life for applicants and eligible individuals and only if the organization, agency, or individual assures that:
1. The information shall be used only for the purposes for which it is being provided;
2. The information shall be released only to persons officially connected with the audit, evaluation, or research;
3. The information shall not be released to the involved individual;
4. The information shall be managed in a manner to safeguard confidentiality; and
5. The final product shall not reveal any identifying personal information without the informed written consent of the involved individual or the individual's representative.
E. Release to other programs or authorities.
1. Upon written consent of the individual or, if appropriate, the individual's representative, DBVI shall release personal information to another agency or organization for its program purposes only to the extent that the information shall be released to the involved individual or the individual's representative and only to the extent that the other agency or organization demonstrates that the information is necessary for its program.
2. Medical or psychological information that DBVI determines may be harmful to the individual shall be released if the other agency or organization assures DBVI that the information shall be used only for the purpose for which it is being provided and that it shall not be further released to the individual.
F. DBVI shall release any personal information required by federal and state laws or regulations.
G. DBVI shall release personal information in response to investigations in connection with law enforcement, fraud, or abuse, unless expressly prohibited by federal or state laws or regulations, and in response to an order issued by a judge, magistrate, or other authorized judicial officer.
H. DBVI shall also release personal information in order to protect the individual or others if the individual poses a threat to his safety or to the safety of others.
I. DBVI shall release to the Governor or his designee a complete and certified copy of the case record including transcripts of a fair hearing decision for the purpose of the Governor's review of an impartial hearing officer's final decision when one of the parties to a fair hearing requests a review.
22VAC45-51-30. Processing referrals and application.
A. DBVI has established and implemented standards for the prompt and equitable handling of applications of individuals for vocational rehabilitation services. These standards include timelines for making good faith efforts to inform individuals of application requirements and to gather information necessary to initiate an assessment for determining eligibility and priority for services.
1. An individual shall be considered to have submitted an application for vocational rehabilitation services from DBVI when the individual or the individual's representative, as appropriate:
a. Has completed and signed a DBVI vocational rehabilitation services application form, which is available at the six DBVI regional offices, DBVI Headquarters, and on the DBVI website;
b. Has completed a common intake application form in a one-stop center requesting vocational rehabilitation services; or
c. Has otherwise requested vocational rehabilitation services from DBVI; and
2. Has provided to DBVI information necessary to initiate an assessment to determine eligibility and priority for vocational rehabilitation services; and
3. Is available to complete the assessment process.
B. Once an individual has submitted an application for vocational rehabilitation services, including applications made through common intake procedures in one-stop centers established under § 121 of the Workforce Innovation and Opportunity Act of 2014, an eligibility determination shall be made within 60 days, unless (i) exceptional and unforeseen circumstances beyond the control of DBVI preclude making a determination within 60 days, and DBVI and the individual agree to a specific extension of time or (ii) an exploration of the individual's abilities, capabilities, and capacity to perform in work situations is carried out in accordance with 22VAC45-51-40 or, if appropriate, an extended evaluation is necessary.
22VAC45-51-40. Eligibility for vocational rehabilitation services.
A. The DBVI Vocational Rehabilitation Program shall serve only individuals who are blind or who have significant visual impairment and have attained the age of 14 years. DBVI and the Virginia Department for Aging and Rehabilitative Services shall identify client populations served by each agency through a cooperative agreement.
B. Any qualified applicant residing in Virginia shall be served by the DBVI Vocational Rehabilitation Program. Services may be provided to otherwise qualified non-U.S. citizens who can produce a permanent or working visa, or their green card registration number. Copies of these documents shall be retained in the applicant's case service record.
C. DBVI shall conduct an initial assessment to determine whether an applicant is eligible for vocational rehabilitation services and to determine the individual's priority under an order of selection for services if DBVI is operating under an order of selection pursuant to 22VAC45-51-60. The initial assessment must be conducted in the most integrated setting possible, consistent with the individual's needs and informed choice. The applicant for vocational rehabilitation services may use a qualified service provider of his choice in obtaining necessary assessments to determine eligibility for services and priority for services.
D. Qualified applicants shall be assessed as meeting the following eligibility criteria to receive vocational rehabilitation services from DBVI:
1. The applicant shall meet the criteria of being blind or visually impaired through one or more of the following:
a. The individual has a visual impairment that results in functional limitations related to obtaining, regaining, or maintaining employment and causes the individual to require the specialized services available through DBVI;
b. The individual has a rapidly progressive eye condition that, in the opinion of a qualified ophthalmologist, will cause the individual to experience functional limitations related to obtaining, regaining, or maintaining employment and causes the individual to require the specialized services available through DBVI, or
c. The individual is in a situation where eye treatment or surgery, or both, are recommended and there are functional limitations in performing employment duties.
2. The individual's blindness or visual impairment shall constitute or result in a substantial impediment to employment.
3. The individual shall require vocational rehabilitation services to prepare for, secure, retain, or regain employment.
4. The individual shall be able to benefit in terms of an employment outcome from the provision of vocational rehabilitation services.
E. Applicants who are unemployed, underemployed, or in unstable employment as determined by the DBVI vocational rehabilitation counselor meet the requirement that there exists a substantial impediment to employment.
F. A beneficiary of social security benefits due to blindness under Title II or XVI of the Social Security Act shall be presumed eligible for DBVI vocational rehabilitation services under subsection D of this section provided the individual intends to achieve an employment outcome consistent with the unique strengths, resources, priorities, concerns, abilities, capabilities, interests, and informed choice of the individual.
G. Vocational rehabilitation services shall not be provided to a potentially eligible individual on the basis of an interim determination of eligibility.
22VAC45-51-50. Comprehensive assessment of qualifications for individualized plans of employment.
Once it is determined that an individual is eligible for DBVI vocational rehabilitation services, to the extent additional data are necessary to make a determination of the employment outcomes and the nature and scope of vocational rehabilitation services to be included in the individualized plan for employment of an eligible individual, a comprehensive assessment shall be conducted to determine the unique strengths, resources, priorities, concerns, abilities, capabilities, interests, and informed choice, including the need for supported employment, of the individual. This comprehensive assessment:
1. Shall be limited to information that is necessary to identify the rehabilitation needs of the individual and to develop the individualized plan of employment of the eligible individual.
2. Shall be used as a primary source of information to the maximum extent possible, as appropriate, and in accordance with confidentiality requirements may include:
a. Existing information obtained for the purposes of determining the eligibility of the individual and assigning priority for an order of selection for the individual; and
b. Information that can be provided by the individual and, if appropriate, by the family of the individual.
3. May include, to the degree needed to make such a determination, an assessment of the personality, interests, interpersonal skills, intelligence and related functional capacities, educational achievements, work experience, vocational aptitude, personal and social adjustments, and employment opportunities of the individual and the medical, psychiatric, psychological, and other pertinent vocational, educational, cultural, social, recreational, and environmental factors that affect the employment and rehabilitation needs of the individual.
4. May include, to the degree needed, an appraisal of the patterns of work behavior of the individual and vocational rehabilitation services needed for the individual to acquire occupational skills and to develop work attitudes, work habits, work tolerance, and social and behavior patterns necessary for successful job performance, including the use of work in a real job situation to assess and develop the capacities of the individual to perform adequately in a work environment.
5. May include referral for the provision of rehabilitation technology services to the individual to assess and develop the capacities of the individual to perform in a work environment.
6. May include an exploration of the individual's abilities, capabilities, and capacity to perform in work situations, which must be assessed periodically during trial work experiences, including experiences in which the individual is provided appropriate supports and training.
22VAC45-51-60. Order of selection for services.
A. When DBVI is unable to serve all potentially eligible individuals due to insufficient funds, an order of selection for vocational rehabilitation services shall be implemented. The order of selection shall consist of a group of categories that designate who shall be served first based on:
1. The individual's blindness or visual impairment including secondary disabling conditions;
2. Whether the individual's blindness or visual impairment profoundly or significantly limits one or more life activities such as mobility, communication, self-care, interpersonal skills, self-direction, work tolerance, or work skills in terms of achieving an employment outcome; and
3. The number of vocational rehabilitation services required over an extended period of time.
B. When an order of selection must be instituted, DBVI shall:
1. Consult with the State Rehabilitation Council for the Blind and Vision Impaired regarding (i) the need to establish an order of selection, (ii) establishment of categories in the order of selection, (iii) establishment of criteria for each category, and (iv) administration of the order of selection;
2. Conduct a public hearing prior to implementation of the order of selection;
3. Continue to provide services to all individuals currently receiving services under an individualized plan for employment;
4. Provide assessment services to determine eligibility for individuals who apply for services;
5. Provide referral services to individuals who apply for services;
6. Identify service and outcome goals and the time within which the goals may be achieved for individuals in each priority category within the order; and
7. Assure that:
a. Individuals with the most significant disabilities shall be selected first for the provision of vocational rehabilitation services; and
b. Individuals who do not meet the criteria for the categories being served shall have access to services provided through the information and referral system.
22VAC45-51-70. Scope of vocational rehabilitation services for individuals who are blind or vision impaired.
The following vocational rehabilitation services shall be available to assist individuals who are blind or visually impaired in preparing for, securing, retaining, or regaining an employment outcome that is consistent with the individual's strengths, resources, priorities, concerns, abilities, capabilities, interests, and informed choice:
1. An initial assessment for determining eligibility and priority for vocational rehabilitation services conducted by a DBVI vocational rehabilitation counselor, including, if appropriate, an initial assessment in rehabilitation technology;
2. A comprehensive assessment for determining vocational rehabilitation needs conducted by a DBVI vocational rehabilitation counselor, including, if appropriate, an assessment by other DBVI staff skilled in rehabilitation technology;
3. Vocational rehabilitation counseling and guidance, including information and support services to assist an individual in exercising informed choice;
4. Referrals and other services necessary to assist applicants and eligible individuals to secure needed services from other agencies, including other components of the statewide workforce investment system and to advise those individuals about the client assistance program established within the disAbility Law Center of Virginia;
5. Physical and mental restoration services, to the extent that financial support is not readily available from a source other than DBVI, such as through health insurance or other comparable services and benefits;
6. Vocational and other training services, including personal and vocational adjustment training, books, tools, and other training materials, except for training or training services in an institution of higher education (i.e., universities, colleges, community colleges, junior colleges, vocational schools, technical institutes, or hospital schools of nursing), that may be paid for with funds under this chapter only if maximum efforts have been made by DBVI and the individual to secure grant assistance in whole or in part from other sources to pay for that training and they are not available;
7. Maintenance, as defined in 22VAC45-51-10;
8. Transition services, which are a coordinated set of activities based on the individual student's needs, taking into account the student's preferences and interests, and including instruction, community experiences, development of employment and other post-secondary adult living objectives and, if appropriate, acquisition of daily living skills and functional vocational evaluation. Transition services must promote or facilitate the achievement of the employment outcome identified in the student's individualized plan for employment (34 CFR 361.5(b)(55));
9. Transportation, as defined in 22VAC45-51-10;
10. Vocational rehabilitation services to family members as defined in 22VAC45-51-10 if necessary to enable the applicant or eligible individual to achieve an employment outcome;
11. Interpreter services, including sign language and oral interpreter services, for individuals who are deaf or hard of hearing and tactile interpreting services for individuals who are deafblind;
12. Reader services, rehabilitation teaching services, and orientation and mobility services for individuals who are blind;
13. Job-related services, including job search and placement assistance, job retention services, follow-up services, and follow-along services;
14. Supported employment services as defined in 22VAC45-51-10;
15. Personal assistance services as defined in 22VAC45-51-10;
16. Post-employment services as defined in 22VAC45-51-10;
17. Occupational licenses, tools, equipment, initial stocks, and supplies;
18. Rehabilitation technology as defined in 22VAC45-51-10 including vehicular modification, telecommunications, sensory, and other technology aids and services;
19. Transition services as defined in 22VAC45-51-10;
20. Technical assistance and other consultation services to conduct market analyses and develop business plans for individuals who are pursuing self-employment or telecommuting or establishing a small business operation as an employment outcome; and
21. Other goods and services determined necessary for the individual who is blind or visually impaired to achieve an employment outcome.
22VAC45-51-80. Development of the individualized plan for employment.
A. General requirements.
1. As described in 22VAC45-51-50, DBVI shall conduct an assessment for determining vocational rehabilitation needs, if appropriate, for each eligible individual, or if DBVI is operating under an order of selection, for each eligible individual to whom DBVI is able to provide vocational rehabilitation services. The purpose of the assessment is to determine the employment outcome and the nature and scope of vocational rehabilitation services to be included in the individualized plan for employment.
2. The IPE shall be developed and implemented within 90 days for each individual determined eligible for vocational rehabilitation services, or if DBVI is operating under an order of selection, for each eligible individual to whom DBVI is able to provide vocational rehabilitation services. DBVI shall take into consideration the needs of the individual and if an IPE cannot be developed within 90 days because a vocational goal cannot yet be established, DBVI and the individual shall agree upon an extension.
3. Vocational rehabilitation services shall be provided in accordance with the provisions of the IPE.
4. The IPE shall:
a. Be designed to achieve the specific employment outcome selected by the individual consistent with the individual's unique strengths, resources, priorities, concerns, abilities, capabilities, interests, and informed choice; and
b. To the maximum extent appropriate, result in employment in an integrated setting.
B. Required information. DBVI shall provide information to each eligible individual or, as appropriate, the individual's representative, in writing and, if appropriate, in the native language or mode of communication of the individual or the individual's representative, including:
1. Available options for developing the IPE, including the option that an eligible individual or, as appropriate, the individual's representative may develop all or part of the IPE:
a. Without assistance from DBVI or other entity; or
b. With assistance from:
(1) A DBVI vocational rehabilitation counselor;
(2) A vocational rehabilitation counselor who is not employed by DBVI; and
(3) Resources other than those in subdivisions 1 b (1) and 1 b (2) of this subsection.
2. Additional information to assist the eligible individual or, as appropriate, the individual's representative in developing the IPE, including:
a. Information describing the full range of components that shall be included in an IPE;
b. As appropriate to each eligible individual:
(1) An explanation of DBVI guidelines and criteria for determining an eligible individual's financial commitments under an IPE;
(2) Information on the availability of assistance in completing DBVI forms required as a part of the IPE; and
(3) Additional information that the eligible individual requests or DBVI determines to be necessary to the development of the IPE.
c. A description of the rights and remedies available to the individual including recourse to the processes for review of DBVI determinations described in 22VAC45-51-140; and
d. A description of availability of the client assistance program within the disAbility Law Center of Virginia and information on how to contact that office.
C. IPE requirements:
1. The IPE shall be a written document prepared on forms provided by DBVI.
2. The IPE shall be developed and implemented in a manner that gives individuals the opportunity to exercise informed choice in selecting:
a. The employment outcome, including the employment setting;
b. The specific vocational rehabilitation services to achieve the employment outcome, including the settings in which vocational rehabilitation services will be provided;
c. The entity or entities that will provide the vocational rehabilitation services; and
d. The methods available for procuring the vocational rehabilitation services.
3. The IPE shall be:
a. Agreed to and signed by the eligible individual or, as appropriate, the individual's representative; and
b. Approved and signed by a DBVI vocational rehabilitation counselor.
4. DBVI shall provide a copy of the IPE and a copy of amendments to the IPE to the eligible individual or, as appropriate, to the individual's representative, in writing and, if appropriate, in the native language or mode of communication of the individual or, as appropriate, the individual's representative.
5. The IPE shall be reviewed at least annually by a DBVI vocational rehabilitation counselor and the eligible individual or, as appropriate, the individual's representative to assess the eligible individual's progress in achieving the identified employment outcome.
6. The IPE shall be amended, as necessary, by the individual or, as appropriate, the individual's representative, in collaboration with a DBVI vocational rehabilitation counselor (to the extent determined to be appropriate by the individual) if there are substantive changes in the employment outcome, the vocational rehabilitation services to be provided, or the providers of the vocational rehabilitation services.
7. Amendments to the IPE shall not take effect until agreed to and signed by the individual or, as appropriate, the individual's representative and by a DBVI vocational rehabilitation counselor.
8. The IPE for a student with a disability who is receiving special education services shall be developed:
a. In consideration of the student's individualized education plan; and
b. In accordance with the plans, policies, procedures, and terms of the interagency agreement between DBVI and the Virginia Department of Education designed to facilitate the transition of students who are blind or vision impaired from school to the receipt of vocational rehabilitation services.
9. Content of the IPE. Each IPE shall include:
a. A description of the specific employment outcome chosen by the eligible individual that is:
(1) Consistent with the individual's unique strengths, resources, priorities, concerns, abilities, capabilities, career interests, and informed choice; and
(2) To the maximum extent appropriate, results in employment in an integrated setting.
b. A description of the specific vocational rehabilitation services under 22VAC45-51-70 that are:
(1) Needed to achieve the employment outcome, including, as appropriate, the provision of assistive technology devices, assistive technology services, and personal assistance services, including training and management of those services; and
(2) Provided in the most integrated setting that is appropriate for the vocational rehabilitation services involved and is consistent with the informed choice of the eligible individual.
c. Timelines for the achievement of the employment outcome and for the initiation of vocational rehabilitation services.
d. A description of the entity or entities chosen by the eligible individual or, as appropriate, the individual's representative that shall provide the vocational rehabilitation services and the methods used to procure those vocational rehabilitation services.
e. A description of the criteria used to evaluate progress toward achievement of the employment outcome.
f. The terms and conditions of the IPE, including, as appropriate, information describing:
(1) The responsibilities of DBVI;
(2) The responsibilities of the eligible individual, including:
(a) The responsibilities the individual shall assume in relation to achieving the employment outcome;
(b) If applicable, the extent of the individual's participation in paying for the cost of vocational rehabilitation services; and
(c) The responsibility of the individual with regard to applying for and securing comparable services and benefits as defined in 22VAC45-51-10; and
(3) The services received by the individual from other comparable services and benefits as defined in 22VAC45-51-10.
10. Post-employment services. The IPE for each individual shall contain, as determined to be necessary, statements concerning:
a. The expected need for post-employment services prior to closing the record of vocational rehabilitation services of an individual who has achieved an employment outcome;
b. A description of the terms and conditions for the provision of any post-employment service; and
c. If appropriate, a statement of how post-employment services shall be provided or arranged through other comparable services and benefits as defined in 22VAC45-51-10.
22VAC45-51-90. Provision of services for individuals who are blind or visually impaired.
The provision of vocational rehabilitation services shall be based on the rehabilitation needs of each individual as identified in that individual's IPE and shall be consistent with the individual's informed choice. DBVI shall not place arbitrary limits on the nature and scope of vocational rehabilitation services to be provided to the individual to achieve an employment outcome:
1. In-state vocational rehabilitation services shall be preferred provided that the preference does not effectively deny an individual a necessary vocational rehabilitation service. If the individual chooses an out-of-state vocational rehabilitation service at a higher cost than an in-state vocational rehabilitation service and if either vocational rehabilitation service would meet the individual's rehabilitation needs, DBVI shall not be responsible for those costs in excess of the cost of the in-state vocational rehabilitation service.
2. DBVI shall maintain written policies governing the rates of payment for all purchased vocational rehabilitation services.
3. DBVI shall maintain a fee schedule designed to ensure a reasonable cost to the program for each vocational rehabilitation service that is not so low as to effectively deny an individual a necessary vocational rehabilitation service and not absolute and permits exceptions so that individual needs can be addressed.
4. DBVI shall not place absolute dollar limits on specific vocational rehabilitation service categories or on the total vocational rehabilitation services provided to an individual.
5. DBVI shall not establish absolute time limits on the provision of specific vocational rehabilitation services or on the provision of vocational rehabilitation services to an individual. The duration of each vocational rehabilitation service needed by an individual shall be determined on an individual basis and reflected in that individual's IPE.
6. DBVI shall authorize vocational rehabilitation services in a timely manner.
7. Written authorizations shall be made either before or at the same time as the purchase of vocational rehabilitation services. An oral authorization may be given in an emergency situation, and the nature of the emergency, the specific authorization given, and the manner in which the authorization was made shall be documented in the individual's case file, and the authorization shall be confirmed in writing and forwarded to the provider of vocational rehabilitation services.
22VAC45-51-100. Participation of individuals in the cost of services based on financial need.
A. Individuals shall be required to participate in the costs of vocational rehabilitation services listed in subsection F of this section provided by DBVI based on financial need. DBVI shall consider certain factors in order to determine the financial needs of individuals applying for and receiving DBVI vocational rehabilitation services.
B. DBVI shall consider an individual's financial need based on certain allowances and exclusions including:
1. The individual's gross income. DBVI shall use a uniform income level including normal living requirements based on the median income for a four-person family provided by the Bureau of the Census as published in the Federal Register (45 CFR 96.85) for the Low Income Home Energy Assistance Program (LIHEAP). The individual's financial need shall be based on 100% of the federal estimated median income in Virginia, which is published annually in the Federal Register;
2. The individual's income or a portion of the individual's income based on family size;
3. The estimated cost of the individual's vocational rehabilitation services specifically related to the individual's disability and not covered by comparable services and benefits; and
4. The tuition costs for the individual or a family member to attend a private or public educational facility.
C. DBVI shall consider the financial needs of eligible individuals using the following income:
1. Annual taxable income (gross income);
2. Annual nontaxable income such as social security benefits, veterans' benefits, retirement benefits, and workers' compensation benefits;
3. Total cash assets, including checking and savings accounts, certificates, stocks, and bonds. DBVI shall maintain Exemptions for Liquid Assets table; and
4. Income from real property.
D. Annually, DBVI shall make a determination of the financial contribution of the individual resulting from an examination of (i) the number of persons in the family unit; (ii) annual taxable income minus allowances; and (iii) exclusions based on individual costs for medical or educational services specifically related to the individual's disability.
E. Individuals with disabilities receiving social security benefits under Title II or XVI of the Social Security Act are exempt from consideration of financial need for vocational rehabilitation services.
F. DBVI shall consider the financial need of eligible individuals who receive the following vocational rehabilitation services:
1. Tuition for college or other training;
2. Medical treatment and physical restoration services;
3. Books and supplies;
4. Services to members of an eligible individual's family when necessary to the vocational rehabilitation of the eligible individual;
5. Occupational licenses, tools, equipment, and initial stock and supplies;
6. Maintenance, as defined in 22VAC45-51-10, during training;
7. Personal incidentals during training;
8. Telecommunications, sensory, and other technological aids and devices when such aids and equipment are not used as adaptive devices for vocational training or employment or both;
9. Transportation; and
10. Rehabilitation engineering services when not incidental to the evaluation of rehabilitation potential.
22VAC45-51-110. Participation of individuals in use of comparable services and benefits.
A. Prior to providing any vocational rehabilitation services to an eligible individual, or to members of the individual's family, DBVI shall determine whether comparable services and benefits, as defined in 22VAC45-51-10, exist under any other program and whether those services and benefits are available to the individual unless such a determination would interrupt or delay the following:
1. The progress of the individual toward achieving the employment outcome identified in the IPE;
2. An immediate job placement; or
3. The provision of vocational rehabilitation services to any individual who is determined to be at extreme medical risk, based on medical evidence provided by an appropriate qualified medical professional.
B. The following vocational rehabilitation services shall be exempt from a determination of the availability of comparable services and benefits and financial need consideration:
1. Assessment for determination of eligibility and vocational rehabilitation needs and priority of vocational rehabilitation services;
2. Counseling and guidance, including information and support services to assist an individual in exercising informed choice;
3 Referral and other services to secure needed services from other agencies;
4. Job-related services, including job search and placement assistance, job retention services, follow-up services, and follow-along services;
5. Post-employment services consisting of services listed under subdivisions 1 through 4 of this subsection;
6. Reader service for eligible individuals enrolled in college or in a vocational training program;
7. Adjustment training and evaluations provided at the Virginia Rehabilitation Center for the Blind and Vision Impaired in Richmond;
8. Prevocational adjustment training, such as rehabilitation teaching, provided to eligible individuals receiving vocational rehabilitation services from DBVI staff;
9. Interpreter services for eligible individuals who are deafblind;
10. Orientation and mobility training;
11. Summer work experience for high school and college students;
12. Work evaluation up to 30 days;
13. Community evaluation training program with rehabilitation teaching;
14. Work experience for adults up to three months;
15. Work adjustment training up to three months;
16. On-the-job training up to 30 days;
17. Supported employment services; and
18. Personal assistance services.
C. If comparable services and benefits exist under any other program and are available to the individual at the time needed to ensure the progress of the individual toward achieving the employment outcome in the individual's IPE, DBVI shall use those comparable services and benefits to meet, in whole or part, the costs of the vocational rehabilitation services.
D. If comparable services and benefits exist under any other program, but are not available to the individual at the time needed to ensure the progress of the individual toward achieving the employment outcome in the individual's IPE, DBVI shall provide vocational rehabilitation services until those comparable services and benefits become available.
22VAC45-51-120. Periodic review of ineligibility determinations.
When DBVI determines that an applicant is ineligible for vocational rehabilitation services or determines that an individual receiving vocational rehabilitation services under an IPE is no longer eligible for vocational rehabilitation services, DBVI shall:
1. Make a determination of ineligibility only after providing the individual, or as appropriate, the individual's representative, with an opportunity for full consultation;
2. Inform the individual in writing, supplemented as necessary by other modes of communication consistent with the informed choice of the individual, of the ineligibility determination including reasons for that determination;
3. Inform the individual in writing, supplemented as necessary by other modes of communication consistent with the informed choice of the individual, the means by which the individual may express and seek remedy for dissatisfaction, including the procedures for review of determinations by DBVI;
4. Provide the individual with a description of services available from the client assistance program established in the disAbility Law Center of Virginia; and
5. Within 12 months of the ineligibility determination and annually thereafter if requested by the individual or, if appropriate, by the individual's representative, review any ineligibility determination that is based on a finding that the individual is incapable of achieving an employment outcome. This review need not be conducted in situations in which the individual has refused it, the individual is no longer present in the state, the individual's whereabouts are unknown, or the individual's medical condition is rapidly progressive or terminal.
22VAC45-51-130. Periodic review of extended employment.
DBVI shall annually review and reevaluate the status of each individual with a disability who has achieved an employment outcome either in an extended employment setting in a community rehabilitation program or in any other employment setting in which the individual is compensated in accordance with § 14(c) of the Fair Labor Standards Act and 29 CFR Part 525 for two years after the individual achieves the employment outcome (and thereafter if requested by the individual or, if appropriate, the individual's representative) to determine the interests, priorities, and needs of the individual with respect to competitive employment or training for competitive employment.
22VAC45-51-140. 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.
NOTICE: The following forms used in administering the regulation were filed by the agency. The forms are not being published; however, online users of this issue of the Virginia Register of Regulations may click on the name of a form with a hyperlink to access it. The forms are also available from the agency contact or may be viewed at the Office of the Registrar of Regulations, General Assembly Building, 2nd Floor, Richmond, Virginia 23219.
FORMS (22VAC45-51)
Application for Vocational Rehabilitation Services, DBVI-04-01 (rev. 4/2014)
Consent to Release Confidential Information for Alcohol or Drug Patients, DBVI-70-22 (rev. 10/2015)
Consent to Release Health Information, DBVI-70-23 (rev. 10/2015)
Consent to Release Personal Information, DBVI-70-29 (rev. 10/2015)
Eye Exam Report, DBVI-70-20E (rev. 7/2014)
Financial Determination/Redetermination Statement Form, DBVI-70-06 (rev. 9/2014)
Health Checklist/General Medical Examination, DBVI-70-04 (rev. 6/2014)
Individualized Plan for Employment Form (eff. 12/2015)
Individualized Plan for Employment Planned Services Form (rev. 12/2015)
VA.R. Doc. No. R09-1168; Filed December 15, 2015, 4:15 p.m.
