Virginia Law

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

B. Informal dispute resolution.

1. A request for review shall be made within 60 days after the determination. The applicant, eligible individual, or, if appropriate, the individual's representative may request a meeting with the supervisor of the staff member who made the determination and request an informal administrative review conducted by the supervisor. Recipients of services who are not receiving vocational rehabilitation services may be offered access to the informal dispute resolution process at the discretion of the supervisor.

2. Within 10 working days of the request, the supervisor shall send a written decision and grounds to the applicant or eligible individual, with a copy to the individual's representative, if applicable, and it shall become part of the case record.

3. The informal dispute resolution process shall not be used to deny or delay the right to proceed directly to a hearing conducted and concluded within the time period established under subdivision D 1 of this section.

C. Mediation.

1. The department shall provide a mediation process conducted by a qualified and impartial mediator as defined in 22VAC30-20-10, who shall be selected from a list of qualified and impartial mediators maintained by the department. Mediation shall be requested within 60 days after a determination or informal administrative review decision. The department shall include in the mediation process the guardian of an applicant, eligible individual, or recipient of services who has been judged incompetent. Participation in the mediation process is voluntary on the part of the applicant or eligible individual and on the part of the department. Mediation may be requested while a hearing is pending but shall not be used to deny or delay the applicant or eligible individual's right to a hearing conducted and concluded within the time period established under subdivision D 1 of this section.

2. The mediator shall schedule and conduct the mediation sessions in a timely manner and in a location convenient to the parties in dispute. The mediator shall afford both parties an opportunity to be represented by counsel or other advocate and to submit evidence or other information. Discussions that occur during mediation remain confidential and shall not be used as evidence in any subsequent hearing or civil proceeding, and parties shall be required to sign a confidentiality pledge prior to mediation. Either party or the mediator may terminate mediation at any time, and the applicant, eligible individual, or the department may seek resolution through a hearing.

3. Any agreement reached by the parties in a mediation shall be described in a written mediation agreement. Both parties to the dispute shall have an opportunity to review the agreement with their representative, supervisor, or legal advisor before signing it. An agreement signed by both parties shall become part of the case record, with a copy given to the applicant or eligible individual and any representative.

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

D. Impartial due process hearing.

1. The applicant, eligible individual, recipient of services, or, if appropriate, individual's representative may request a hearing within 60 days after the determination to be reviewed, meeting or informal administrative review decision under subsection B of this section, or mediation refusal or mediation termination date. Department personnel may request a hearing within 60 days after termination of the mediation process under subsection C of this section.

a. The hearing shall be scheduled and conducted by a qualified and impartial hearing officer as defined and selected according to subdivision 2 of this subsection.

b. The hearing officer shall conduct the hearing within 60 days of the department receiving an individual's request, unless informal resolution is achieved before the 60th day, or the parties agree to a specific extension of time, or the hearing officer grants a postponement request for good cause that would result in a fair representation of the issues.

c. The hearing officer shall provide both parties to the dispute an opportunity to present evidence, information, and witnesses; to be represented by counsel or other appropriate advocate; and to examine all witnesses, information, and evidence. All testimony shall be given under oath. Hearsay testimony and redundant evidence may be admitted at the discretion of the hearing officer. Because the hearing officer cannot issue subpoenas, the department shall be responsible for the appearance of current department personnel on the witness list of either party.

d. Within 30 days after the hearing, the hearing officer shall issue a written decision with a full report of the findings and grounds for the decision to the applicant, eligible individual, individual's representative, and the department. The decision shall be based on the provisions of the approved state plan, the Act, federal vocational rehabilitation regulations, and state regulations and policies that are consistent with federal requirements. The hearing officer's decision shall be final, except that a party may request an impartial administrative review if the state has established procedures for review, and a party may bring a civil action under subsection G of this section.

2. The hearing officer for a particular case shall be selected randomly by the department 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 commissioner and those members of the State Rehabilitation Council designated in § 102(d)(2)(C) of the Act (29 USC § 722(b) and (d)).

E. Administrative review of hearing officer decision.

1. If the state has established procedures for an administrative review, the request and statutory, regulatory, or policy grounds for the request shall be made in writing to the department within 20 days of the mailing of the impartial hearing officer's decision. The review shall be a paper review of the entire hearing record and shall be conducted by a designee of the Governor's office who shall not delegate the review to any personnel of the department.

2. The reviewing official shall provide both parties an opportunity to submit additional written evidence and information relevant to the final decision concerning the matter under review. The reviewing official may not overturn or modify the hearing officer's decision, or any part of that decision, that supports the position of the applicant or eligible individual, unless the reviewing official concludes, based on clear and convincing evidence, that the hearing officer's decision is clearly erroneous on the basis of being contrary to the approved state plan, the Act, federal vocational rehabilitation regulations, and state regulations and policies that are consistent with federal requirements.

3. Within 30 days after the request, the reviewing official shall issue an independent decision and full report of the findings and the statutory, regulatory, or policy grounds for the decision to the applicant, eligible individual, individual's representative, and department. The decision of the reviewing official is final and shall be implemented pending review by the court if either party chooses under subsection G of this section to bring a civil action regarding the matter in dispute.

F. Informing affected individuals. The department shall inform, through appropriate modes of communication, all applicants and eligible individuals of their right to request a review of a determination made by department personnel that affects provision of vocational rehabilitation services, including the names and addresses of individuals with whom mediation and hearing requests may be filed and how the mediator and hearing officer shall be selected; their right to proceed directly to a hearing; their right to an informal administrative review; their right to pursue mediation; and their right to contact the Client Assistance Program to assist during mediation and hearing processes. Notification shall be provided in writing at the time of application for vocational rehabilitation services; assignment to a priority category if the department is operating under an order of selection; individualized plan for employment development; and reduction, suspension, or termination of services.

G. Civil action. Any party who disagrees with the findings or decision of an impartial hearing officer under subsection D of this section or an administrative review under subsection E of this section shall have the right to bring a 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 subsection, 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.