4.0 Appeals

Table of Contents

• Policy
• 1.0 Summary
• 1.1 Local Level Resolution
• 1.2 Administrative Review
• 1.3 Mediation
• 1.4 Impartial Due Process Hearing
• 2.0 Definitions
• 3.0 Exceptions
• Forms

Reference:

34 CFT § 361.57

34 CFT § 361.5(35)

34 CFT § 361.5(21)

34 CFT § 361.5(24)

34 CFT § 361.5(43)

8 AAC 98.600 § 8 AAC 98.630

Code of Professional Ethics for Rehabilitation Counselors from the Commission on Rehabilitation Counselor Certification

Effective: November 01, 2021

Revised:

  Approved: ___________________________________   Date: 11/01/2021

                 Duane G. Mayes, Director

Policy

Any applicant or recipient of services, who is dissatisfied with any determination made by the Alaska Division of Vocational Rehabilitation (ADVR) that affects the provision of Vocational Rehabilitation (VR) services may request, or if appropriate, may request through the individual's representative, a review of that determination.

Federal laws and regulations do not define the types of determinations that can be reviewed through an Administrative Review, Mediation, or Impartial Due Process Hearing. Examples of determinations for appeal include, but are not limited to:

• Applicant eligibility for VR services

• A determination of "Ineligible"

• Any ADVR action concerning the development, implementation, denial, suspension, reduction, or termination of VR services under an Individualized Plan for Employment (IPE)

• Case closure

• Unresolved disputes pertaining to the scope of services provided

ADVR business operations are not considered appealable as they are operational in nature and do not constitute a decision made by ADVR personnel. 

1.0 Summary

Options in the appeals process include:

1. Local Level Resolution

2. Administrative Review

3. Mediation

4. Impartial Due Process Hearing

An individual is not required to go through an Administrative Review or Mediation in order to have an Impartial Due Process Hearing; although, it is strongly recommended. The Administrative Review has proven to be very effective in resolving disputes in a timely manner, and Administrative Law Judges often expect that all other potential options for remedy have been exhausted prior to conducting an Impartial Due Process Hearing.

Individuals have the choice of participating in any or all of the appeals process options. ADVR will not use the Administrative Review or Mediation to deny or delay the individual's right to an Impartial Due Process Hearing.

ADVR may not institute a suspension, reduction, or termination of VR services being provided (services which have already commenced) to an applicant or recipient, including evaluation and assessment services, and IPE development, pending an Administrative Review, pending a resolution through Mediation, or pending a decision by an Administrative Law Judge unless:

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

2. ADVR 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.

Informing the Individual:

An individual and/or their representative must be informed in writing, or through another accessible format, of their right to appeal ADVR's decisions and of the Client Assistance Program (CAP) several times throughout the VR process:

1. At the time the individual applies for services

2. At the time the individual is assigned to an Order of Selection category, if ADVR is on an Order of Selection

3. At the time the IPE is developed, and

4. Whenever VR services are reduced, suspended, or terminated

Appealing a decision, beyond attempting resolution at the Regional/Local level:

A request to appeal an ADVR decision must:

1. Be made in writing, or submitted through another accessible format, and mailed, emailed, or faxed to:

   ADVR Administrative Review Officer

   PO Box 115516,

   Juneau. AK, 99811

   Fax: (907) 931-6548

   Email: dol.dvr.info@alaska.gov

2. Be made within 30 calendar days after the date ADVR notified the individual of the decision which they are appealing

3. Contain a clear and concise statement of the decision in question

4. Describe the reason for the appeal and the appeal option selected

5. Describe any ADA accommodation requested for the appeal process

6. Be signed and dated by the individual and include their contact information.

Individuals should be contacted by an ADVR representative within three business days of the receipt of their written appeal request. 

An individual has the right to present evidence and to have representation during the appeal process, however, ADVR will not pay for an individual's representation or related legal fees.

1.1 Local Level Resolution

Prior to beginning the appeals process, it is recommended that the individual bring their dissatisfaction to the attention of their VR Counselor. If the VR Counselor and the individual cannot resolve the issue, the concern should be brought to the attention of the VR Manager in an attempt to come to a resolution at the regional level. The VR Manager will be available to meet with the individual and to review the case in a timely manner in an attempt to resolve the issue.

1.2 Administrative Review

An Administrative Review is the next step in the Informal Dispute Resolution process and is conducted by an ADVR employee who is appointed by the Chief of Rehabilitation Services to act as the Administrative Review Officer and who has had no previous involvement in the case. Participation in an Administrative Review does not waive the individual's rights to Mediation or an Impartial Due Process Hearing.

The costs of the Administrative Review must be paid by ADVR. ADVR is not required to pay for any costs related to the representation of an applicant or recipient.

Overview of the Administrative Review Process:

An individual makes a request, in writing or through another accessible format, for an Administrative Review, to the ADVR Administrative Review Officer within 30 calendar days of the disputed ADVR decision. The request must contain a clear and concise statement of the decision being appealed, describe the reason for the appeal and the appeal option selected, describe any ADA accommodation requested for the appeal process, be signed and dated by the individual, and include their contact information. Alternatively, the individual may submit the Administrative Review, Mediation, and/or Impartial Due Process Hearing Request Form.

Even though the individual may not have specifically requested an Impartial Due Process Hearing, the receipt of the request for a review of a decision initiates the 60- calendar-day period in which an Impartial Due Process Hearing must be conducted, unless an extension is agreed to by both parties.

The Administrative Review Officer will either conduct the review, or delegate the responsibility to another ADVR employee who is appointed by the Chief of Rehabilitation Services to act as the Administrative Review Officer, and who has had no previous involvement in the case.

1. The Administrative Review Officer will ensure that the Administrative Review will be conducted within 15 calendar days of receipt of the original request or at a time mutually agreed to by the parties involved, ensuring that the entire appeal process (up to and including an Impartial Due Process Hearing) can be completed within 60 calendar days, unless the parties agree to a specific extension of time.

2. The Administrative Review will be held at a time and place convenient to the individual, generally at the regional ADVR office.

3. The Administrative Review Officer will coordinate the process. ADVR will provide necessary accommodations. A foreign language interpreter will be provided for those individuals who cannot communicate in English.

4. Failure of the individual to appear at the scheduled Administrative Review or to be available for a telephone interview is a waiver of the right to a review. The Administrative Review Officer may dispose of the matter, or if the defaulted party submits a request for rescheduling within 15 calendar days with good cause, the Administrative Review will be rescheduled.

5. The Administrative Review Officer will make an effort to render a decision and to develop a written agreement with the individual by the close of the Administrative Review. If this is not possible, the Administrative Review Officer must notify the individual in writing of the decision within seven calendar days of the Administrative Review, unless circumstances require additional time. If that occurs, the Administrative Review Officer will notify the individual and the Chief of Rehabilitation Services of the delay and the timeframe for the decision.

6. If the Administrative Review Officer is unable to resolve the matter to the satisfaction of the individual, the Administrative Review Officer will provide the individual with information on their right to Mediation and to an Impartial Due Process Hearing. The individual must notify ADVR within 15 calendar days of the date of the Administrative Review decision that they wish to proceed with Mediation or an Impartial Due Process Hearing.

7. The Administrative Review Officer will send the decision to the Director of Vocational Rehabilitation, the Chief of Rehabilitation Services, the involved VR Counselor and the involved VR Manager, and will document the decision in the AWARE case management system.

8. The results of the Administrative Review are binding for ADVR unless the decision of the Administrative Review Officer is not permitted by law, or the individual requests Mediation or an Impartial Due Process Hearing.

1.3 Mediation

Mediation is the formal process of using an independent third-party to act as an intermediary to assist in settling disputes prior to pursuing formal administrative or other legal remedies. Mediation supplements, not replaces, VR Counselor and VR Manager roles in resolving VR case issues.

The Chief of Rehabilitation Services may deny a request for Mediation in cases where it is not likely Mediation will resolve the issue. In such cases, the individual may request a hearing. ADVR will notify the individual of the Mediation denial in writing within ten calendar days of receiving the Mediation request.

Participation in Mediation is a voluntary process and is held only if both parties agree to be involved in the process. At any point in the mediation process, either party involved, or the Mediator, may elect to terminate the Mediation, and either party may pursue resolution through an Impartial Due Process Hearing.

Use of the Mediation process is not used to deny or delay the individual the right to pursue resolution through an Impartial Due Process Hearing. Even though the individual may not have specifically requested an Impartial Due Process Hearing, the receipt of the request for Mediation begins the 60-calendar-day period in which an Impartial Due Process Hearing must be conducted. A request for Mediation following an Administrative Review does not begin a new 60-day period.

The Mediation process is conducted by a qualified and impartial Mediator.

A qualified Mediator:

1. Is not a public employee (other than administrative law judge, hearing examiner, state office of mediators, or institution of higher education)

2. Is not a member of the State Vocational Rehabilitation Council

3. Has not been involved in the vocational rehabilitation of the individual

4. Is knowledgeable about the VR program and applicable laws, regulations, and policies

5. Has been trained in effective mediation techniques consistent with any state-approved or recognized certification, licensing, registration, or other requirements

6. Has no personal or professional or financial interest that would conflict with objectivity.

Mediation sessions will be scheduled and conducted in a timely manner and will be held in a location and manner that is convenient to the parties of the dispute.

Discussions that occur during Mediation must be kept confidential and may not be used as evidence in any subsequent Impartial Due Process Hearings or civil proceedings, and parties to the Mediation may be required to sign a confidentiality pledge prior to the commencement of the process.

An agreement reached by the parties to the dispute must be described in a written (and other accessible format if needed) Mediation Agreement that is developed by the parties with the assistance of the Mediator and signed by both parties. 

A Mediation Agreement cannot be appealed, as a Mediation Agreement is a mutual agreement between ADVR and the individual and is not imposed on either ADVR or the individual by a third party. In the event a Mediation agreement is terminated, either party may pursue resolution through an Impartial Due Process Hearing based on the original dispute. 

The costs of the Mediation must be paid by ADVR. ADVR is not required to pay for any costs related to the representation of an applicant or recipient.

Overview of the Mediation Process:

1. An individual makes a request, in writing or through another accessible format, for Mediation to the ADVR Administrative Review Officer within 30 calendar days of the disputed ADVR decision, or within 15 calendar days of the Administrative Review. The request must contain a clear and concise statement of the decision being appealed, describe the reason for the appeal and the appeal option selected, describe any ADA accommodation requested for the appeal process, be signed and dated by the individual, and include their contact information. Alternatively, the individual may submit the Administrative Review, Mediation, and/or Impartial Due Process Hearing Request Form.

2. The Administrative Review Officer will ensure that the Mediation will be conducted within 15 calendar days of receipt of the request, or at a time mutually agreed to by the parties involved, ensuring that the entire appeal process (up to and including an Impartial Due Process Hearing) can be completed within 60 calendar days, unless the parties agree to a specific extension of time.

3. The Office of Administrative Hearings (OAH) will coordinate the process. ADVR will provide necessary accommodations. A foreign language interpreter will be provided for those individuals who cannot communicate in English.

4. An agreement reached by the parties to the dispute must be described in a written Mediation agreement that is developed by the parties with the assistance of the Mediator and signed by both parties. Copies of the written agreement must be sent to both parties and a copy is to be placed in the case file.

5. The written Mediation agreement must be completed and signed within 15 calendar days of the final verbal agreement.

6. A Mediation agreement is valid when it is signed by the individual and ADVR Chief of Rehabilitation Services and is consistent with federal and state laws and regulations and ADVR policy and procedure. The agreement shall become part of the VR case file. A copy will be provided to the individual, and it may be used as evidence in an Impartial Due Process Hearing and/or civil proceedings.

A Mediation agreement is not a contract. However, the individual and ADVR staff are expected to adhere to it, and problems with compliance shall be handled through any of the established channels to resolve any issues that arise. If the Mediation agreement is not adhered to by ADVR, the individual may request an Impartial Due Process Hearing.

If an agreement is not reached through Mediation, the individual has the right to request an Impartial Due Process Hearing without submitting another written request to ADVR.

1.4 Impartial Due Process Hearing

An Impartial Due Process Hearing is a formal review of an ADVR decision before an Administrative Law Judge. An individual who is dissatisfied with any decision concerning the delivery of VR services may request an Impartial Due Process Hearing without going through an Administrative Review or Mediation.

The costs of the Impartial Due Process Hearing must be paid by ADVR. ADVR is not required to pay for any costs related to the representation of an applicant or recipient.

Overview of the Impartial Due Process Hearing process:

1. An individual makes a request, in writing or through another accessible format, for Impartial Due Process Hearing, to the ADVR Administrative Review Officer within 30 calendar days of the disputed decision. The request must contain a clear and concise statement of the decision being appealed, describe the reason for the appeal and the appeal option selected, describe any ADA accommodation requested for the appeal process, be signed and dated by the individual, and include their contact information. Alternatively, the individual may submit the Administrative Review, Mediation, and/or Impartial Due Process Hearing Request Form.

2. The Impartial Due Process Hearing shall be conducted within 60 calendar days of receipt of the individual's request for review, unless informal resolution is achieved prior to the 60th day, or the parties agree to an extension.

3. The Office of Administrative Hearings (OAH) will coordinate the process. ADVR will provide necessary accommodations. A foreign language interpreter will be provided for those individuals who cannot communicate in English.

4. The hearing must be held before an Administrative Law Judge.

5. The Administrative Law Judge shall issue a written report of the findings and decision of the Impartial Due Process Hearing within 30 calendar days of the completion of the hearing.

6. The decision of the Administrative Law Judge shall be considered final and must be based upon provisions of Federal Regulations 34 CFR Part 361 and ADVR policies.

7. If a party brings a civil action to challenge the final decision of the Administrative Law Judge, the final decision of the Administrative Law Judge must be implemented pending review by the court. The individual is responsible for fees associated with a civil action.

8. Any party who disagrees with the findings and decision of an Administrative Law Judge has a right to bring a civil action, appealing the decision to the State Superior Court in accordance with Rules of Appellate, Rule 602, or they may file an original action in either the State Superior Court or the Federal District Court. The individual is responsible for fees associated with an appeal.

Table 1: Overview and timeline of the Appeals Process as described in sections 1.1, 1.2, and 1.3 of this Policy.

2.0 Definitions

In the scope of this Policy, the following definitions apply:

Administrative Review Officer: An ADVR employee who is appointed by the Chief of Rehabilitation Services to act in this capacity, and who has had no previous involvement in the case.

Mediator: An independent third-party to act as an intermediary to assist in settling disputes prior to pursuing formal administrative or other legal remedies.

Administrative Law Judge: A judicial officer in the Office of Administrative Hearing which is Alaska's independent hearing panel for most types of executive branch agency administrative hearings.

3.0 Exceptions

Any exception to Policy must be approved by the Chief of Rehabilitation Services or their designee.

Forms

• Form: Appeals Request