1. Purpose of DVR & Roles 2. Applying for DVR 3. Eligibility & DVR Wait List (OOS) 4. Plan for Employment (IPE) 5. DVR Services 6. Fiscal/Purchasing 7. Closing a DVR Case 8. Consumer Rights & Legal Info 9. Service Providers & Projects 10. Technical & General Info 11. Site Map 12. Chronological Policy Changes

Consumer Rights & Legal Info



Policy

Accommodations

Accommodations, including language and sign language interpreting, shall be provided, as needed, during the VR process to enable consumers to participate to the fullest extent possible in their plans for employment development and implementation. The DVR shall not provide accommodations that are the legal responsibility of another party.

Appropriate Modes of Communication

Communication with the consumer or, as appropriate, the consumer's representative shall be supplemented, as necessary, by other appropriate modes of communication. The appropriate mode of communication shall be consistent with the informed choice of the consumer and enable the consumer to comprehend and respond to information that is being communicated.

Client Assistance Program (CAP)

Each consumer shall be informed of the availability of CAP services throughout the vocational rehabilitation process.

Confidentiality and Release of Information

All personal information shall be kept confidential. Verbal and written information shall be released only with the informed, written consent of the consumer or, if appropriate, the consumer’s representative. Please refer to the Confidentiality guidance for policy guidance on releasing information.

Exceptions

Consumers, through appropriate means of communication, and providers of information shall be advised of the confidentiality and release restrictions. Medical, psychological and other information determined to be potentially harmful to the consumer shall not be directly released to the consumer, but shall be released to another party chosen by the consumer. Information may be released to parents of minors or legal guardians under the same conditions as released directly to consumers.

Due Process

A consumer or, if appropriate, a consumer’s representative who is dissatisfied with any DVR decisions concerning the furnishing or denial of services may request a timely review within 12 months of the determination. This process may include the following:

Informal Resolution

When the consumer agrees, the DVR shall use informal resolution procedures, including mediation. A consumer may choose to go directly to a formal hearing without participating in an informal resolution process.

Mediation

A qualified and impartial mediator who is trained in effective mediation techniques conducts mediation. This process is confidential, voluntary and must be agreed to by both parties and is not to be used to deny or delay the right of a consumer to a hearing. Discussions that occur during the mediation process will not be used as evidence in any subsequent due process hearing or civil proceeding.

Impartial Hearing

The impartial hearing is performed by an impartial hearing officer selected from a pool of qualified individuals identified by the DVR and the Wisconsin Rehabilitation Council (WRC).

The consumer or, if appropriate, the consumer’s representative must have an opportunity to be represented by counsel or other appropriate advocates selected by the individual and shall have the opportunity to submit additional evidence, information and witnesses to the impartial hearing officer. Also, the consumer or, if appropriate, the consumer’s representative must have the opportunity to examine all witnesses and other relevant sources of information and evidence. Services that have been initiated shall not be suspended, reduced or terminated pending the final hearing decision unless the consumer or consumer’s representative so requests or there is evidence that the services have been obtained through misrepresentation, fraud, collusion or criminal conduct on the part of the consumer.

The hearing must be held within 60 days of a consumer’s initial request for review unless informal resolution is achieved prior to the 60th day or the parties agree to a specific extension of time. The impartial hearing officer shall make a decision based on the provisions of the approved Wisconsin State Plan for Vocational Rehabilitation, the Rehabilitation Act, federal Vocational Rehabilitation Regulations, and state regulations and policies that are consistent with federal requirements. The impartial hearing officer shall provide to the consumer or, if appropriate, the consumer’s representative and to the DVR Administrator a full written report of the findings and grounds for the decision within 30 days of the completion of the hearing.

The decision of the hearing officer is final and must be implemented pending a review by the court if either party chooses to file with the court. A request for review must be filed within 30 days of the decision of the hearing officer to the Circuit Court of Appeals.

Informed Choice

Consumers must be provided with opportunities to participate actively and make meaningful and informed choices throughout the VR process including: evaluation and assessment services and providers, their vocational goals and responsibilities, the services needed to complete their plans for employment, and the service providers and methods used to procure such services. Consumers shall be informed about their right to make informed choices. Consumers who require or request assistance in exercising informed choice shall be offered support services to assist them in this process. Consumers may choose to involve family members, advocates and other authorized representatives throughout the VR process.

Related Information

Forms/Publications

Rehabilitation Act/Federal Regulations Comparison

Federal Regulations

Sec. 361.5(a)(5)

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 telecommunications services and audio recordings, Brailled and large print materials, materials in electronic formats, augmentative communication devices, graphic presentations, and simple language materials.

Example only:

Sec. 361.43(b) Inform the individual in writing, supplemented as necessary by other appropriate modes of communication consistent with the informed choice of the individual, of the ineligibility determination, including the reasons for that determination, the requirements under this

section, and the means by which the individual may express and seek remedy for any dissatisfaction, including the procedures for review of State unit personnel determinations in accordance with Sec. 361.57;

Sec. 361.57 Review of determinations made by designated State unit personnel.

(a) Procedures. The designated State unit must develop and implement procedures to ensure that an applicant or eligible individual who is dissatisfied with any determination made by personnel of the designated State unit 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. The procedures must be in accordance with paragraphs (b) through (k) of this section:

(b) General requirements.

(1) Notification. Procedures established by the State unit under this section must provide an applicant or eligible individual or, as appropriate, the individual's representative notice of--

(i) The right to obtain review of State unit determinations that affect the provision of vocational rehabilitation services through an impartial due process hearing under paragraph (e) of this section;

(ii) The right to pursue mediation under paragraph (d) of this section with respect to determinations made by designated State unit personnel that affect the provision of vocational rehabilitation services to an applicant or eligible individual;

(iii) The names and addresses of individuals with whom requests for mediation or due process hearings may be filed;

(iv) The manner in which a mediator or impartial hearing officer may be selected consistent with the requirements of paragraphs (d) and

(f) of this section; and

(v) The availability of the client assistance program, established under 34 CFR part 370, to assist the applicant or eligible individual during mediation sessions or impartial due process hearings.

(2) Timing. Notice described in paragraph (b)(1) of this section must be provided in writing--

(i) At the time the individual applies for vocational

rehabilitation services under this part;

(ii) At the time the individual is assigned to a category in the State's order of selection, if the State has established an order of selection under Sec. 361.36;

(iii) At the time the IPE is developed; and

(iv) Whenever vocational rehabilitation services for an individual are reduced, suspended, or terminated.

Sec. 361.38 Protection, use, and release of personal information.

(a) General provisions.

\(1) The State agency and the State unit must adopt and implement written policies and procedures to safeguard the confidentiality of all personal information, including photographs and lists of names. These policies and procedures must ensure that--

(i) Specific safeguards are established to protect current and stored personal information;

(ii) 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;

(iii) All applicants or their representatives are informed about the State unit's need to collect personal information and the policies governing its use, including--

(A) Identification of the authority under which information is collected;

(B) Explanation of the principal purposes for which the State unit intends to use or release the information;

(C) Explanation of whether providing requested information to the State unit is mandatory or voluntary and the effects of not providing requested information;

(D) Identification of those situations in which the State unit requires or does not require informed written consent of the individual before information may be released; and

(E) Identification of other agencies to which information is routinely released;

(iv) An explanation of State policies and procedures affecting personal information will be provided to each individual in that individual's native language or through the appropriate mode of

communication; and

(v) These policies and procedures provide no fewer protections for individuals than State laws and regulations.

(2) The State unit may establish reasonable fees to cover extraordinary costs of duplicating records or making extensive searches and must establish policies and procedures governing access to records.

(b) State program use. All personal information in the possession of the State agency or the designated State unit must be used only for the purposes directly connected with the administration of the vocational rehabilitation program. Information containing identifiable personal information may not be shared with advisory or other bodies that do not have official responsibility for administration of the program. In the administration of the program, the State unit may

obtain personal information from service providers and cooperating agencies under assurances that the information may not be further divulged, except as provided under paragraphs (c), (d), and (e) of this

section.

(c) Release to applicants and eligible individuals.

(1) Except as provided in paragraphs (c)(2) and (c)(3) of this section, if requested in writing by an applicant or eligible individual, the State unit must make all requested information in that individual's record of services accessible to and must release the

information to the individual or the individual's representative in a timely manner.

(2) Medical, psychological, or other information that the State unit determines may be harmful to the individual may not be released directly to the individual, but must be provided to the individual

through a third party chosen by the individual, which may include, among others, an advocate, a family member, or a qualified medical or mental health professional, unless a representative has been appointed by a court to represent the individual, in which case the information must be released to the court-appointed representative.

(3) If personal information has been obtained from another agency or organization, it may be released only by, or under the conditions established by, the other agency or organization.

(4) An applicant or eligible individual who believes that information in the individual's record of services is inaccurate or misleading may request that the designated State unit amend the information. If the information is not amended, the request for an

amendment must be documented in the record of services, consistent with Sec. 361.47(a)(12).

(d) Release for audit, evaluation, and research. Personal information may be released 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 will be used only for the purposes for which it is being provided;

(2) The information will be released only to persons officially connected with the audit, evaluation, or research;

(3) The information will not be released to the involved individual;

(4) The information will be managed in a manner to safeguard confidentiality; and

(5) The final product will not reveal any personal identifying information without the informed written consent of the involved individual or the individual's representative.

(e) Release to other programs or authorities.

(1) Upon receiving the informed written consent of the individual or, if appropriate, the individual's representative, the State unit may release personal information to another agency or organization for its

program purposes only to the extent that the information may 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 requested is necessary for its program.

(2) Medical or psychological information that the State unit determines may be harmful to the individual may be released if the other agency or organization assures the State unit that the

information will be used only for the purpose for which it is being provided and will not be further released to the individual.

(3) The State unit must release personal information if required by Federal law or regulations.

(4) The State unit must 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.

(5) The State unit also may release personal information in order to protect the individual or others if the individual poses a threat to his or her safety or to the safety of others.

Sec. 361.57 Review of determinations made by designated State unit personnel.

(a) Procedures. The designated State unit must develop and implement procedures to ensure that an applicant or eligible individual who is dissatisfied with any determination made by personnel of the designated State unit 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. The procedures must be in accordance with paragraphs (b) through (k) of this section:

(b) General requirements.

(1) Notification. Procedures established by the State unit under this section must provide an applicant or eligible individual or, as appropriate, the individual's representative notice of--

(i) The right to obtain review of State unit determinations that affect the provision of vocational rehabilitation services through an impartial due process hearing under paragraph (e) of this section;

(ii) The right to pursue mediation under paragraph (d) of this section with respect to determinations made by designated State unit personnel that affect the provision of vocational rehabilitation services to an applicant or eligible individual;

(iii) The names and addresses of individuals with whom requests for mediation or due process hearings may be filed;

(iv) The manner in which a mediator or impartial hearing officer may be selected consistent with the requirements of paragraphs (d) and (f) of this section; and

(v) The availability of the client assistance program, established under 34 CFR part 370, to assist the applicant or eligible individual during mediation sessions or impartial due process hearings.

(2) Timing. Notice described in paragraph (b)(1) of this section must be provided in writing--

(i) At the time the individual applies for vocational

rehabilitation services under this part;

(ii) At the time the individual is assigned to a category in the State's order of selection, if the State has established an order of selection under Sec. 361.36;

(iii) At the time the IPE is developed; and

(iv) Whenever vocational rehabilitation services for an individual are reduced, suspended, or terminated.

(3) Evidence and representation. Procedures established under this section must--

(i) Provide an applicant or eligible individual or, as appropriate, the individual's representative with an opportunity to submit during mediation sessions or due process hearings evidence and other information that supports the applicant's or eligible individual's

position; and

(ii) Allow an applicant or eligible individual to be represented during mediation sessions or due process hearings by counsel or other advocate selected by the applicant or eligible individual.

(4) Impact on provision of services. The State unit may not institute a suspension, reduction, or termination of vocational rehabilitation services being provided to an applicant or eligible individual, including evaluation and assessment services and IPE development, pending a resolution through mediation, pending a decision by a hearing officer or reviewing official, or pending informal resolution under this section unless--

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

(ii) The State agency has evidence that the services have been obtained through misrepresentation, fraud, collusion, or criminal

conduct on the part of the individual or the individual's representative.

(5) Ineligibility. Applicants who are found ineligible for vocational rehabilitation services and previously eligible individuals who are determined to be no longer eligible for vocational rehabilitation services pursuant to Sec. 361.43 are permitted to challenge the determinations of ineligibility under the procedures described in this section.

(c) Informal dispute resolution. The State unit may develop an informal process for resolving a request for review without conducting mediation or a formal hearing. A State's informal process must not be

used to deny the right of an applicant or eligible individual to a hearing under paragraph (e) of this section or any other right provided under this part, including the right to pursue mediation under

paragraph (d) of this section. If informal resolution under this paragraph or mediation under paragraph (d) of this section is not successful in resolving the dispute within the time period established

under paragraph (e)(1) of this section, a formal hearing must be conducted within that same time period, unless the parties agree to a specific extension of time.

(d) Mediation.

(1) The State must establish and implement procedures, as required under paragraph (b)(1)(ii) of this section, to allow an applicant or eligible individual and the State unit to resolve disputes involving

State unit determinations that affect the provision of vocational rehabilitation services through a mediation process that must 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) Mediation procedures established by the State unit under paragraph (d) must ensure that--

(i) Participation in the mediation process is voluntary on the part of the applicant or eligible individual, as appropriate, and on the part of the State unit;

(ii) Use of the mediation process is not 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 paragraph (e)(1) of this section or any other rights

provided under this part. 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;

(iii) The mediation process is conducted by a qualified and impartial mediator, as defined in Sec. 361.5(b)(43), who must be selected from a list of qualified and impartial mediators maintained by

the State--

(A) On a random basis;

(B) By agreement between the director of the designated State unit and the applicant or eligible individual or, as appropriate, the individual's representative; or

(C) In accordance with a procedure established in the State for assigning mediators, provided this procedure ensures the neutrality of the mediator assigned; and

(iv) Mediation sessions are scheduled and conducted in a timely manner and are held in a location and manner that is convenient to the

parties to the dispute.

(3) Discussions that occur during the mediation process must be kept confidential and may not be used as evidence in any subsequent due process hearings or civil proceedings, and the parties to the mediation process may be required to sign a confidentiality pledge prior to the commencement of the process.

(4) An agreement reached by the parties to the dispute in the mediation process must be described in a written mediation agreement that is developed by the parties with the assistance of the qualified and impartial mediator and signed by both parties. Copies of the agreement must be sent to both parties.

(5) The costs of the mediation process must be paid by the State.

The State is not required to pay for any costs related to the representation of an applicant or eligible individual authorized under paragraph (b)(3)(ii) of this section.

(e) Impartial due process hearings. The State unit must establish

and implement formal review procedures, as required under paragraph (b)(1)(i) of this section, that provide that--

(1) A hearing conducted by an impartial hearing officer, selected in accordance with paragraph (f) of this section, must be held within 60 days of an applicant's or eligible individual's request for review

of a determination made by personnel of the State unit that affects the provision of vocational rehabilitation services to the individual, unless informal resolution or a mediation agreement is achieved prior to the 60th day or the parties agree to a specific extension of time;

(2) In addition to the rights described in paragraph (b)(3) of this section, the applicant or eligible individual or, if appropriate, the individual's representative must be given the opportunity to present witnesses during the hearing and to examine all witnesses and other relevant sources of information and evidence;

(3) The impartial hearing officer must--

(i) Make a decision 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;

and

(ii) Provide to the individual or, if appropriate, the individual's representative and to the State unit a full written report of the findings and grounds for the decision within 30 days of the completion of the hearing; and

(4) The hearing officer's decision is final, except that a party may request an impartial review under paragraph (g)(1) of this section if the State has established procedures for that review, and a party

involved in a hearing may bring a civil action under paragraph (I) of this section.

(f) Selection of impartial hearing officers. The impartial hearing officer for a particular case must be selected--

(1) From a list of qualified impartial hearing officers maintained by the State unit. Impartial hearing officers included on the list must be--

(i) Identified by the State unit if the State unit is an

independent commission; or

(ii) Jointly identified by the State unit and the State

Rehabilitation Council if the State has a Council; and

(2)(i) On a random basis; or

(ii) By agreement between the director of the designated State unit and the applicant or eligible individual or, as appropriate, the individual's representative.

(g) Administrative review of hearing officer's decision. The State may establish procedures to enable a party who is dissatisfied with the

decision of the impartial hearing officer to seek an impartial administrative review of the decision under paragraph (e)(3) of this section in accordance with the following requirements:

(1) A request for administrative review under paragraph (g) of this section must be made within 20 days of the mailing of the impartial hearing officer's decision.

(2) Administrative review of the hearing officer's decision must be conducted by--

(i) The chief official of the designated State agency if the State has established both a designated State agency and a designated State unit under Sec. 361.13(b); or

(ii) An official from the office of the Governor.

(3) The reviewing official described in paragraph (g)(2)(i) of this section--

(i) Provides both parties with an opportunity to submit additional evidence and information relevant to a final decision concerning the matter under review;

(ii) 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 decision of the impartial hearing officer is clearly erroneous on the basis of being contrary to the approved State plan, the Act, Federal vocational rehabilitation

regulations, or State regulations and policies that are consistent with Federal requirements;

(iii) Makes an independent, final decision following a review of the entire hearing record and provides the decision in writing, including a full report of the findings and the statutory, regulatory, or policy grounds for the decision, to the applicant or eligible

individual or, as appropriate, the individual's representative and to the State unit within 30 days of the request for administrative review under paragraph (g)(1) of this section; and

(iv) May not delegate the responsibility for making the final decision under paragraph (g) of this section to any officer or employee of the designated State unit.

(4) The reviewing official's decision under paragraph (g) of this section is final unless either party brings a civil action under paragraph (i) of this section.

(h) Implementation of final decisions. If a party brings a civil action under paragraph (h) of this section to challenge the final decision of a hearing officer under paragraph (e) of this section or to

challenge the final decision of a State reviewing official under paragraph (g) of this section, the final decision of the hearing officer or State reviewing official must be implemented pending review

by the court.

(i) Civil action.

(1) Any party who disagrees with the findings and decision of an impartial hearing officer under paragraph (e) of this section in a State that has not established administrative review procedures under

paragraph (g) of this section and any party who disagrees with the findings and decision under paragraph (g)(3)(iii) of this section have a 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.

(2) In any action brought under paragraph (i) of this section, the court--

(i) Receives the records related to the impartial due process hearing and the records related to the administrative review process, if applicable;

(ii) Hears additional evidence at the request of a party; and

(iii) Basing its decision on the preponderance of the evidence, grants the relief that the court determines to be appropriate.

(j) State fair hearing board. A fair hearing board as defined in Sec. 361.5(b)(22) is authorized to carry out the responsibilities of the impartial hearing officer under paragraph (e) of this section in accordance with the following criteria:

(1) The fair hearing board may conduct due process hearings either collectively or by assigning responsibility for conducting the hearing to one or more members of the fair hearing board.

(2) The final decision issued by the fair hearing board following a hearing under paragraph (j)(1) of this section must be made collectively by, or by a majority vote of, the fair hearing board.

(3) The provisions of paragraphs (b)(1), (2), and (3) of this section that relate to due process hearings and of paragraphs (e), (f), (g), and (h) of this section do not apply to fair hearing boards under this paragraph (j).

Sec. 361.52 Informed choice.

(a) General provision. The State plan must assure that applicants and eligible individuals or, as appropriate, their representatives are provided information and support services to assist applicants and eligible individuals in exercising informed choice throughout the rehabilitation process consistent with the provisions of section 102(d) of the Act and the requirements of this section.

(b) Written policies and procedures. The designated State unit, in consultation with its State Rehabilitation Council, if it has a Council, must develop and implement written policies and procedures that enable an applicant or eligible individual to exercise informed choice throughout the vocational rehabilitation process. These policies

and procedures must provide for--

(1) Informing each applicant and eligible individual (including students with disabilities who are making the transition from programs under the responsibility of an educational agency to programs under the

responsibility of the designated State unit), through appropriate modes of communication, about the availability of and opportunities to exercise informed choice, including the availability of support services for individuals with cognitive or other disabilities who

require assistance in exercising informed choice throughout the vocational rehabilitation process;

(2) Assisting applicants and eligible individuals in exercising informed choice in decisions related to the provision of assessment services;

(3) Developing and implementing flexible procurement policies and methods that facilitate the provision of vocational rehabilitation services and that afford eligible individuals meaningful choices among

the methods used to procure vocational rehabilitation services;

(4) Assisting eligible individuals or, as appropriate, the individuals' representatives in acquiring information that enables them to exercise informed choice in the development of their IPEs with respect to the selection of the--

(i) Employment outcome;

(ii) Specific vocational rehabilitation services needed to achieve the employment outcome;

(iii) Entity that will provide the services;

(iv) Employment setting and the settings in which the services will be provided; and

(v) Methods available for procuring the services; and

(5) Ensuring that the availability and scope of informed choice is consistent with the obligations of the designated State agency under this part.

(c) Information and assistance in the selection of vocational rehabilitation services and service providers. In assisting an applicant and eligible individual in exercising informed choice during

the assessment for determining eligibility and vocational rehabilitation needs and during development of the IPE, the designated

State unit must provide the individual or the individual's representative, or assist the individual or the individual's representative in acquiring, information necessary to make an informed

choice about the specific vocational rehabilitation services, including the providers of those services, that are needed to achieve the individual's employment outcome. This information must include, at a minimum, information relating to the--

(1) Cost, accessibility, and duration of potential services;

(2) Consumer satisfaction with those services to the extent that information relating to consumer satisfaction is available;

(3) Qualifications of potential service providers;

(4) Types of services offered by the potential providers;

(5) Degree to which services are provided in integrated settings; and

(6) Outcomes achieved by individuals working with service providers, to the extent that such information is available.

(d) Methods or sources of information. In providing or assisting the individual or the individual's representative in acquiring the information required under paragraph (c) of this section, the State

unit may use, but is not limited to, the following methods or sources of information:

(1) Lists of services and service providers.

(2) Periodic consumer satisfaction surveys and reports.

(3) Referrals to other consumers, consumer groups, or disability advisory councils qualified to discuss the services or service providers.

(4) Relevant accreditation, certification, or other information relating to the qualifications of service providers.

(5) Opportunities for individuals to visit or experience various work and service provider settings.

Rehabilitation Act

Sec. 101(a)(20)(A)

The State plan shall include an assurance that the designated State agency will implement an information and referral system adequate to ensure that individuals with disabilities will be provided accurate vocational rehabilitation information and guidance, using appropriate modes of communication, to assist such individuals in preparing for, securing, retaining, or regaining employment, and will be appropriately referred to Federal and State programs (other than the vocational rehabilitation program carried out under this title), including other components of the statewide workforce investment system in the State.

Sec. 20. Client Assistance Information

All programs, including community rehabilitation programs, and projects, that provide services to individuals with disabilities under this Act shall advise such individuals who are applicants for or recipients of the services, or the applicants' representatives or individuals' representatives, of the availability and purposes of the client assistance program under section 112, including information on means of seeking assistance under such program.

(c) Procedures

(1) In general

Each State shall establish procedures for mediation of, and procedures for review through an impartial due process hearing of, determinations made by personnel of the designated State unit that affect the provision of vocational rehabilitation services to applicants or eligible individuals.

(2) Notification

(A) Rights and assistance

The procedures shall provide that an applicant or an eligible individual or, as appropriate, the applicant's representative or individual's representative shall be notified of‑‑

(i) the right to obtain review of determinations described in paragraph (1) in an impartial due process hearing under paragraph (5);

(ii) the right to pursue mediation with respect to the determinations under paragraph (4); and

(iii) the availability of assistance from the client assistance program under section 112.

(B) Timing

Such notification shall be provided in writing‑‑

(i) at the time an individual applies for vocational rehabilitation services provided under this title;

(ii) at the time the individualized plan for employment for the individual is developed; and

(iii) upon reduction, suspension, or cessation of vocational rehabilitation services for the individual.

(3) Evidence and representation

The procedures required under this subsection shall, at a minimum‑‑

(A) provide an opportunity for an applicant or an eligible individual, or, as appropriate, the applicant's representative or individual's representative, to submit at the mediation session or hearing evidence and information to support the position of the applicant or eligible individual; and

(B) include provisions to allow an applicant or an eligible individual to be represented in the mediation session or hearing by a person selected by the applicant or eligible individual.

(4) Mediation

(A) Procedures

Each State shall ensure that procedures are established and implemented under this subsection to allow parties described in paragraph (1) to disputes involving any determination described in paragraph (1) to resolve such disputes through a mediation process that, at a minimum, shall be available whenever a hearing is requested under this subsection.

(B) Requirements

Such procedures shall ensure that the mediation process‑‑

(i) is voluntary on the part of the parties;

(ii) is not used to deny or delay the right of an individual to a hearing under this subsection, or to deny any other right afforded under this title; and

(iii) is conducted by a qualified and impartial mediator who is trained in effective mediation techniques.

(C) List of mediators

The State shall maintain a list of individuals who are qualified mediators and knowledgeable in laws (including regulations) relating to the provision of vocational rehabilitation services under this title, from which the mediators described in subparagraph (B) shall be selected.

(D) Cost

The State shall bear the cost of the mediation process.

(E) Scheduling

Each session in the mediation process shall be scheduled in a timely manner and shall be held in a location that is convenient to the parties to the dispute.

(F) Agreement

An agreement reached by the parties to the dispute in the mediation process shall be set forth in a written mediation agreement.

(G) Confidentiality

Discussions that occur during the mediation process shall be confidential and may not be used as evidence in any subsequent due process hearing or civil proceeding. The parties to the mediation process may be required to sign a confidentiality pledge prior to the commencement of such process.

(H) Construction

Nothing in this subsection shall be construed to preclude the parties to such a dispute from informally resolving the dispute prior to proceedings under this paragraph or paragraph (5), if the informal process used is not used to deny or delay the right of the applicant or eligible individual to a hearing under this subsection or to deny any other right afforded under this title.

(5) Hearings

(A) Officer

A due process hearing described in paragraph (2) shall be conducted by an impartial hearing officer who shall issue a decision based on the provisions of the approved State plan, this Act (including regulations implementing this Act), and State regulations and policies that are consistent with the Federal requirements specified in this title. The officer shall provide the decision in writing to the applicant or eligible individual, or, as appropriate, the applicant's representative or individual's representative, and to the designated State unit.

(B) List

The designated State unit shall maintain a list of qualified impartial hearing officers who are knowledgeable in laws (including regulations) relating to the provision of vocational rehabilitation services under this title from which the officer described in subparagraph (A) shall be selected. For the purposes of maintaining such list, impartial hearing officers shall be identified jointly by‑‑

(i) the designated State unit; and

(ii) members of the Council or commission, as appropriate, described in section 101(a)(21).

Sec. 101(a)(19) Choice

The State plan shall include an assurance that applicants and eligible individuals or, as appropriate, the applicants' representatives or individuals' representatives, will be provided information and support services to assist the applicants and individuals in exercising informed choice throughout the rehabilitation process, consistent with the provisions of section 102(d).

Sec. 102(b)(2)(B) Informed choice

An individualized plan for employment shall be developed and implemented in a manner that affords eligible individuals the opportunity to exercise informed choice in selecting an employment outcome, the specific vocational rehabilitation services to be provided under the plan, the entity that will provide the vocational rehabilitation services, and the methods used to procure the services, consistent with subsection (d).

Frequently Asked Questions

Activating the headings using enter from the keyboard expands the answer text underneath the question, so it can be read.

Appeal

1. Can DVR force you to do something even if you agreed to do it as part of an appeal?

No; on the other hand, if you do not do something you previously agreed to do, that may result in a termination of your IPE with DVR and a suspension of services DVR is providing. (Reviewed: 06/2014)

23. Can a consumer appeal being assigned to a specific counselor?

[Opinion of DVR Policy Analyst] - Yes, RSA Program Assistance Circular 88-03, restated in the questions section of federal regulations, indicates that assignment of counselor is an appealable decision. (Reviewed: 06/2014)

Confidentiality/Release of Information (ROI)

3. When we attend IEPs, consulting mtgs, etc., can we retain an “unofficial” file in the office with non-consumer info?

Until the individual becomes a DVR consumer, all information shared as part of transition activities should be kept in a file at the school. As long as the individual is in the school system, the information would be protected under the school, DPI, IDEA rules. When the individual applies for services, information in the file could then be shared with the DVR staff.

There is never an "unofficial file". If we keep a file on an individual, the information would have to be protected under our rules (for DVR consumers) or under the rules of the agency that originated the information. This is especially true when dealing with minors.

We cannot and should not keep an "unofficial file". The legal liability risk is too high. It is also not good public policy to keep “unofficial records” on individuals.

Finally, any written material, e-mail, and/or final document in any media that is not protected under confidentiality rules is by law considered public information. These "unofficial files" would be considered public information if retained by DVR in the manner suggested by staff.

I agree that it is helpful to have access to this information, although the utility of old information later on is doubtful. We could retain this information by asking the school to keep a transition file, under their rules, and to request from the parents authorization for DVR to see the information. The file, however, should always be under the physical control and custody of the school. When the person becomes a consumer of DVR, we can request copies of the material from the school file.

I hope this clarifies the reasons as to why we are not to keep any information including but not limited to evaluations, IEP reports, written notes, etc. on students or other individuals prior to their becoming consumers. (Reviewed: 06/2014)

4. Can we accept DDB releases or should we have consumers sign a DVR release?

[Opinion of DWD Legal Counsel] - Howard Bernstein, Legal Counsel for DWD, reviewed the DDB release http://dhs.wisconsin.gov/forms/F1/F14014.pdf and 34 CFR 361.38 and stated that we can accept it because it does not place DVR in violation of the federal regulation or other privacy protection laws.

He added the following:

The form places the individual on notice that he or she is releasing all medical, educational and evaluation records for the purpose of review by the Disability Determination Bureau. Although the form does not name DVR, it lists among those covered by the release both "counselors" under the heading "all educational sources" and "social workers/rehabilitation counselors" as a separate dot point. Therefore the individual who reads the form should reasonably be able to understand that it allows the DDB to see his or her DVR records.

Therefore, the release is considered a valid release for DVR purposes.

Since the release still contains the statement that information created within 12 months after the date of the signature can be release, we would need to inform Social Security that we cannot provide this information if we receive requests to do so. We should also continue our practice, as we do for all releases, of contacting the consumer if we have any concerns that the consumer intended the information requested to be released. (Reviewed: 06/2014)

6. Is DVR covered by HIPAA?

RSA has determined that State VR Agencies do not fall under the Health Insurance Portability and Accountability Act (HIPAA). This determination was shared in a RSA Information Memorandum RSA-IM-01-44 dated September 25, 2001 which states that under the Administrative Simplification provisions in Subtitle F of Title II under HIPAA and in 45CFR parts 160 and 162 do not apply to State VR Agencies.

This determination also applies to staff who are Licensed Professional Counselors employed by DVR performing DVR work activities. The activities conducted by VR Counselors in the State VR Agencies do not meet the criteria to fall under HIPAA.

If you would like more information on HIPAA the following sites can be used:

HIPAA Website - http://www.hhs.gov/ocr/hipaa/ 

HIPAA Charts - http://www.cms.hhs.gov/HIPAAGenInfo/Downloads/CoveredEntitycharts.pdf 

(Reviewed: 06/2014)

7. Question about the Records Notice - when a request is made (but not a certified copy, is a signature required?

Yes, a signature is required. The person who compiles and sends out the information should sign it as the records custodian. If a certified copy is requested, then the WDA Director’s signature is required. The DVR-229-E (Records Notice) must be completed and signed whenever records are being shared, regardless of the medium (email, certified copies, over the phone, etc.). (Reviewed: 06/2014)

8. Can we share ongoing info with a parent (or family member) who is not the consumer's guardian without having to get updated releases?

There are a couple ways we can share information with a consumer's parent. Best practice is to work with the consumer directly as much as possible to assist them in advocating for themselves, having them be responsible for their case, and having them share information and updates with their parents.

We can obtain releases of information that allow us to share information with a parent. However, a release does not allow for ongoing sharing of information. We are not able to share information that is generated after the date the release is signed by the consumer. We would need an updated release to share information generated after the date the previous one was signed.

There are a couple other ways we can share appropriate information with a parent. A consumer could have the parent attend a meeting with them allowing them to receive information shared at the meeting. The counselor should ask the consumer if there is anything they would not like discussed with the parent present to ensure we only share what the consumer would like shared. We should case note this discussion in the case record.

If a counselor receives a call from a parent asking for information about the case, a counselor could ask the parent to put the consumer on the phone and we could obtain verbal approval from the consumer to share the specific information being requested at that point in time. We should case note this conversation in the case record.

If the consumer has given DVR permission to provide scheduling information or coordinate meetings with the parent or family member this can be done. This permission should be case noted in the case file.

As a reminder, we should be as helpful as possible and provide good customer service. If we do not have a release to speak to a parent, we can always listen to what a parent wants to share, and in return we can share general information on DVR policy and practice, not specific information about the consumer. (Updated: 09/2014)

9. Guidance states the WDA Director is to certify records. Can they delegate the certification of records to a VR Sup?

Yes. (Reviewed: 06/2014)

12. I have received a release from CAP. What can I release?

[Opinion of DVR Policy Analyst] - DVR has a special relationship with the Client Assistance Program because of their mandate under the Rehabilitation Act American College Testing. Upon receipt of a release, the CAP Client Assistance Program investigator can inspect the entire case record, not just the information prior to the date the consumer signed the release. For additional information refer to the Confidentiality Guidance Piece section on providing information to CAP. (Reviewed: 06/2014)

13. Who should certified copy fee checks be sent to? Bureau of Finance?

[Opinion of DVR Policy Analyst] - The check should be sent to you and then you submit it to Central Office for proper coding. CO staff will then provide to Finance for deposit.

PO Box 7852
Madison, WI 53707

(Reviewed: 06/2014)

14. Do we have to check with a psychologist who wrote a report prior to determine if it could cause harm to release?

[Opinion of DVR Policy Analyst] - )No. Before records can be released to the consumer, a counselor or manager must review psychological reports, medical records, and other information to determine if any might cause significant harm to the consumer. If so, the consumer must select a third party to receive the records on his/her behalf. As necessary the psychologist can be consulted with.

If it is unclear if the report could cause harm the counselor should consult with their supervisor. (Reviewed: 06/2014)

15. I have been subpoenaed to appear tomorrow in a civil case. Do I need to obtain a release from the consumer?

[Opinion of DVR Policy Analyst] - Yes, you do need to get the consumer's permission (a signed release of medical information) to testify. You can take a release with you and get the consumer's signature in the court If the consumer refuses, you need to tell the judge that you cannot testify because of confidentiality restrictions (s. 47 and s. 146 Wisconsin State Statutes and 34 CFR Code of Federal Regulations 361.38, federal regulations). If the judge will grant you immunity from prosecution, you can be ordered to testify. If the judge does that, then go ahead and testify. Otherwise, politely and respectfully refuse.

The only difference in regard to a subpoena to a hearing (unemployment, worker's compensation, social security appeal) is that in a hearing the hearing officer cannot grant immunity so if the consumer refuses to sign a release granting you permission to testify, you cannot be compelled by the hearing officer to do so.

http://dwd.wisconsin.gov/dvr/info_ctr/legal/subpoena_releasing_info.pdf 
http://dwd.wisconsin.gov/dwd/forms/DVR/doc/dvr_199_e.doc

(Reviewed: 06/2014)

16. DVR has a current & closed file on a person; if we get a signed release specifying the complete file, do we copy both?

[Opinion of DVR Policy Analyst] - Before making that decision you should contact the consumer and ask what he/she intended when signing the release form. Make sure he/she knows what information you have. Then casenote what the consumer tells you. (Reviewed: 06/2014)

17. Release of Records …

[Entire Question] - I have received a release from a lawyer which includes a statement (psychological testing including vocational evaluations) as one of the kinds of records requested. Medical records and social history are also requested.

Do any of these allow me to send records covering depression and other mental health/mental illness records? In other words, are these records covered by the psychological testing statement?

[Opinion of DVR Policy Analyst] - You should call the consumer and make sure it is OK to send the records before you do. Make sure the consumer knows what mental health records you possess when you ask permission to release them. (Reviewed: 06/2014)

18. Do we need a release to provide a county child support investigator inform on if a consumer is following their IPE?

[Opinion of DVR Policy Analyst] - No. Child support investigators are exempt by state statute.

Child Support Investigation - Section 49.22(2m), Wisconsin State Statutes, requires disclosure of personal information including employment information to the Child Support Program without prior notice or consent of the subject of a record. (Reviewed: 06/2014)

19. I have a release which allows for ongoing sharing of information with another agency. What can I share?

[Opinion of DVR Policy Analyst] - No signed release allows the ongoing sharing of information with other agencies.

A signed release allows the release of file information one time only, and only information which was in our possession prior to or at the time of the consumer's signature on the release. How then do you ever have the ability to contact others and obtain/share information like who is providing which service, what is the consumer's current address, and eligibility for comparable benefits?

A release does not cover those situations. Instead, the Rehabilitation Act, the Workforce Investment Act and DWD 68 give counselors the legal ability to share information like that in the above paragraph, without having a signed release. Each consumer is to be informed of this contingency at time of application in writing. The citations for this authority are in the Confidentiality Guidance Piece.

So, no, the release you have is no longer valid. The release you had was never valid for the purpose you now need to share information for. But no release is needed for you to call another agency and ask them if they have current information like the consumer's current address.

http://dwd.wisconsin.gov/dwd/forms/DVR/doc/dvr_199_e.doc. (Reviewed: 06/2014)

20. My understanding is that medical records should be obtained by the requestor to the agency of origin. Correct?

[Opinion of DVR Policy Analyst] - If the requestor has a valid signed consent to release, and if you believe the consumer was aware we had the records, and if the records are not stamped by the originator as not being able to be re-released, then you can release them.

http://dwd.wisconsin.gov/dwd/forms/DVR/doc/dvr_199_e.doc

Confidentiality Guidance piece - http://dwd.wisconsin.gov/dvr/info_ctr/legal/confidentiality.pdf

(Reviewed: 06/2014)

Consumer Communication

5. Can DVR copy emails into case notes? Do we have to inform consumers of this?

[Opinion of DVR Policy Analyst] - In regards to attaching emails to case notes there is nothing prohibiting this. However, you need to ensure that the information being attached is appropriate. There are some concerns that long chain/string of emails have been attached with information included in all the back and forth emails that is not necessary or appropriate for a consumers case note, or that some case files only have email case notes and not much else. The counselor needs to use their professional judgment in determining what to copy and paste and what to summarize. And again, it would be best practice to inform the consumer that email communications may be attached into their case notes if this is occurring as there may be some information that they would not want copied into their case record. (Reviewed: 06/2014)

10. Can a consumer under the age of 18 or over 18 with a court appointed guardian sign DVR documents?

[Opinion of DVR Policy Analyst] - The parent or court appointed guardian is required to sign. The consumer can sign along with them if the parent or guardian wants them to. (Reviewed: 06/2014)

11. If a consumer can hear and speak, but prefers to use ASL, do we have to go with her preference?

[Opinion of DVR Policy Analyst] - If the consumer can hear and speak, but prefers ASL, then ASL should be used. The consumer may not feel comfortable with his/her grasp of English grammar and usage when spoken.

The law is pretty clear that the choice of preferred method rests with the consumer. See Providing Sign Language Interpreter guidance. (Reviewed: 06/2014)

21. Can DVR accept an "X" for a consumer's signature?

[Opinion of DVR Policy Analyst] - Yes, we can accept an X as the consumer's signature. There should be a case note to reflect the authentication by the DVR staff. (Reviewed: 06/2014)

Vendor/Provider

2. When we purchase services from vendors, who owns the reports? Can vendors release without DVR's permission?

When DVR purchases a service from a vendor, DVR is the "record owner" of any reports that are created as part of the purchased service (e.g. psychological reports, vocational evaluations, monthly progress reports, etc.). When vendors are asked to release a DVR owned record, they have the following two options:

(1) Notify DVR of the request prior to releasing the record, & if DVR gives them permission to release the record, the vendor can do so OR (2) Inform the organization requesting the information that DVR is the record owner and advise them to contact DVR to obtain the record.

Exceptions:

A vendor receives a court order for the records. (this is between the vendor and the court)

A consumer initiates the release of records.

If records are released under these two exception reasons, the vendor should obtain a valid release of information prior to releasing the records. The vendor can use DVR's release form or a form that meets our criteria for disclosure as follows:

• The name of the person whose record is being disclosed.

• The type of information to be disclosed. The release should state specifically what information is being requested (functional capacity evaluation, vocational evaluation, AODA medical documentation, case notes from May 06-present, etc.). Using the wording “entire file” to describe the type of information to be disclosed is not a valid description.

• The types of health care providers making the disclosure.

• The purpose of the disclosure such as whether the disclosure is for further medical care, for an application for insurance, to obtain payment of an insurance claim, for a disability determination, for a vocational rehabilitation evaluation, for a legal investigation, or for other specified purposes.

• The individual, agency, or organization to whom disclosure may be made.

• The signature of the DVR consumer or the individual authorized by the consumer and the relationship of that person to the consumer/the authority of the person.

• The date the consent is signed.

• The time period during which the consent is effective. The time period means the period of time during which information that was generated prior to the date the consent is signed can be released.

(Reviewed: 06/2014)

22. Is RAPIDS information public information? I have a consumer who wants to know if we use a specific vendor.

[Opinion of DVR Policy Analyst] - RAPIDS information is not public per se. That is, any consumer specific information is protected under confidentiality. But at a programmatic level, whom we purchase services from and at what level is public information. (Reviewed: 06/2014)

Email DWD DWD Photo Gallery DWD on Twitter DWD on Facebook DWD on YouTube DWD on LinkedIn DWD RSS Feed

A proud partner of the network