Division Policy 2.05

SUBJECT

Informal/Formal Review Process and Mediation (VR)

EFFECTIVE DATE

January 12, 2000

REVIEW DATE

January 18, 2013

EXPIRATION DATE

This policy will be reviewed and updated as needed.

PURPOSE

To provide guidelines for informal and formal reviews for clients of vocational rehabilitation services.

AUTHORITY

34 CFR 361.57

POLICY

An applicant or eligible individual for vocational rehabilitation services has a right to request a review of any decision made by the Division of Blind Services (DBS) regarding their rehabilitation program.  At any time an applicant/client is entitled to request one of the four review processes that are described below. An applicant/eligible individual may request such a review through an informal review process, (District review conducted by a Supervisor or District Administrator, or an Administrative review conducted by the Chief, Bureau of Client Services, or mediation which is conducted by a certified Mediator) or formal review (Fair Hearing) procedures outlined below.

Informal Reviews

DBS has three procedures for conducting informal reviews as requested by an applicant or eligible individual with regard to decisions made by a rehabilitation specialist or supervisor concerning the provision or denial of services.

1. A district review is to be conducted by the specialist's direct Supervisor or District Administrator at the verbal or written request of an applicant or eligible individual or, as appropriate, his/her representative.
2. If the individual is dissatisfied with the results of a supervisory review or chooses to bypass a supervisory review, he/she may make a written request for an Administrative Review to be conducted by the Bureau Chief of Client Services or designee. The Bureau Chief must receive this written request within 30 days of the decision regarding the furnishing or denial of services.
3. If an individual prefers mediation, the individual can request mediation at any time during the informal or formal procedures.

Mediation

An applicant or eligible individual has the right to pursue mediation with respect to any decision concerning the furnishing or denial of services by DBS. The process of mediation is voluntary, must not be used to delay or deny an individual's right to a formal hearing, and will be conducted by a certified and impartial mediator who is trained in effective mediation techniques. The cost of mediation is the sole responsibility of DBS.

The DBS representative must have full authority to settle with applicant/client demand without further consultation.

Each session in the mediation process must be scheduled within 45 days of an individual's written request. The individual must submit such a request within 30 days of the decision regarding service provision to the Bureau Chief of Client Services and Program Support. If the parties of the dispute in the mediation process reach an agreement, it will be set forth in a written mediation agreement.

Discussions that occur during the mediation process are confidential and will not be used, as evidence in any subsequent due process or civil proceedings. Each party to the mediation may be required to sign a pledge of confidentiality prior to the commencement of the mediation process.

The process of mediation must not delay a formal hearing, if so desired by the individual unless the individual agrees upon an extended time frame or, as appropriate his/her representative.

Each of the informal reviews must be conducted and a written decision provided within a time frame agreed upon by both parties, but at least within 45 days of the request to allow for a formal review if desired and requested by the individual. The informal review process will not delay a formal hearing if so desired by the individual, unless the individual agrees upon an extended time frame or, as appropriate his/her representative. A written decision resulting from either a supervisory review or administrative review or mediation must be included in the individual's record of services.

Impartial Due Process Hearing Procedures

An applicant or eligible individual may request a formal review/fair hearing of a decision concerning the furnishing or denial of services through the process of a Fair Hearing. Fair Hearings are conducted by an impartial hearing officer from the Florida Department of Administrative Hearings (DOAH) within 45 days of a written request by the individual, unless informal resolution is achieved prior to the 45th day or the parties agree to a specific extension of time. The individual must submit such a request within 30 days of the decision regarding service provision to the DBS Director. DBS does not suspend, reduce, or terminate services being provided under an evaluation, assessment, or Individual Plan for Employment (IPE). Such services will be provided pending a final resolution through either mediation or an impartial due process hearing unless there is evidence that such services have been obtained through misrepresentation, fraud, collusion, or criminal conduct on the part of the individual.

The individual, or individual's representative, must be afforded the opportunity to provide additional evidence, information, and witnesses, as well as the opportunity to examine all witnesses and other relevant information and evidence. The individual may elect to be represented by counsel or other appropriate advocate including a representative from the Client Assistance Program.

The DOAH impartial hearing officer will make a decision based on the provision of the approved State Plan, the Rehabilitation Act, Federal VR regulations, and State regulations and policies that are consistent with Federal requirements. A written report of the findings will be provided to the individual or, if appropriate, his/her representative within 30 days of completion of the hearing.

Either party involved in the hearing may choose to seek an impartial review of the decision of the hearing officer by the Commissioner of the Department of Education. A request of such review must be submitted to DOE Commissioner within 20 days of the mailing of the impartial hearing officer's written decision. This process must provide an opportunity for submission of additional evidence and information relevant to a final decision concerning the matter under review.

The Commissioner may overturn or modify the impartial hearing officer's decision only if, based on clear and convincing evidence, the decision is clearly erroneous because it is contrary to the approved State plan, the Rehabilitation Act, Federal VR regulations, or State regulations or policies that are consistent with the Federal requirements. A final decision, full report of findings, and grounds for decision will be provided in writing to both parties within 30 days of providing notice of review.

Except for time limitations established in 34 CFR 361.57(b)(1) and 361.57(b)(5), reasonable time extensions may be provided for good cause shown at the request of either or both parties.

A decision made by the Commissioner is final unless the party aggrieved by such decision brings a civil action in any state court of competent jurisdiction or in a district court of the United States of competent jurisdiction without regard to the amount of controversy.

Client Assistance Program

The Client Assistance Program (CAP) has been established for the purpose of assisting clients/applicants with:

1. Understanding services available through DBS;
2. Pursuing appropriate remedies to ensure the protection of client's rights; and
3. Helping to resolve any dissatisfaction that the client may have with regard to the furnishing or denial of services from DBS through the processes of informal, mediation, or formal reviews.

CAP services are free, and CAP is independent of all state agencies providing services to individuals with disabilities. CAP is a statewide program and can be contacted by calling toll-free: 1-800-342-0823 (voice) or 1-800-346-4127 (TDD).

Original signed by Joyce Hildreth, Director, on October 14, 2009.