Attachment 4.16(b)(2)
Mediation and Impartial Due Process Hearing Procedures
Mediation and Due Process Procedures
The Virginia Department for the Visually Handicapped (DVH) - Service Complaint or Grievance for Vocational Rehabilitation Customers/Applicants
Objective
It is the objective of this procedure to afford an immediate fair nonjudicial method for the resolution of disputes which may arise between DVH and any citizen of Virginia who is, or seeks to be, a recipient of services.
Policy
A service complaint is defined as a complaint or dispute of any citizen of Virginia pertaining to services sought from or provided by DVH. When such disputes cannot be resolved between the complainant and the employee, who provides or denies the service, it is the policy of DVH that the complainant may appeal the decision and be afforded a fair hearing or mediation by higher authority if he/she so desire. A complainant requesting mediation or a fair hearing shall have at every step the right to present witnesses and/or evidence to support his/her grievance with complete freedom from reprisal. The customer may have access to relevant materials as provided by Section 2.1-342 of the Code of Virginia.
All customers who register a complaint/grievance must be reminded by the counselor or supervisor of the availability of the Client Assistance Program (CAP). DVH provides the toll-free number for CAP on the copy of the application retained by the customer.
Before requesting a fair hearing, customers of DVH should make every effort to resolve the dispute through frank discussions with the employee whose decision is in dispute. It is normally expected that virtually all grievances can be handled in this manner. If, however, the grievance is not resolved, the complainant should proceed as follows:
First Step (Informal)
If the grievance is not resolved within ten full working days after discussions between the customer and the employee, the grievant must reduce his/her grievance to writing on a form obtainable from regional managers, facility administrators, or supervisors. The fully completed grievance form (DVH 70-016) shall be delivered by the grievant to the employee of DVH with whom discussions were held. A copy shall also be delivered to that employee's immediate supervisor. The immediate supervisor of this employee shall meet with the grievant and the affected employee within a reasonable time not to exceed two weeks of receipt of the grievance form. The grievant may have a representative and/or legal counsel of his/her choice present at this meeting. Every effort will be made to reach a mutually satisfactory solution during the first step.
Second Step (Informal)
If the supervisor's reply from the first step meeting is not acceptable to the grievant, he/she may request in writing a meeting with the deputy commissioner for services delivery. Such a request must be submitted within a reasonable time not to exceed two weeks after the first step decision is made. The deputy commissioner for services delivery shall meet with the grievant and/or his/her representative or legal counsel and the employee within five full working days of the grievant's request and reply in writing to the grievant within three full working days following the second step meeting. In the event the customer's complaint is with the regional manager or VRCBVI director, the first step meeting will be handled by the deputy commissioner for services delivery and the second step by the commissioner.
Mediation
If the grievant is not satisfied with results from the second step meeting, he/she may request the services of a mediator to help resolve the issue. The individual may also elect to go directly to mediation (by passing the first and second steps). A mediator, who is not an employee of DVH, will provide mediation. The grievant, who is interested in pursuing mediation, will be provided services from a pool of mediators maintained by DVH. The grievant may also choose to go directly to a formal hearing, without utilizing mediation services. Once the complaint/grievance enters the formal process, the services of a mediator will no longer be an option available to the grievant.
Formal Hearing Process
The grievant may elect to waive the informal hearing process (Step 1/Step 2) and or mediation and enter immediately the formal hearing process.
If the deputy commissioner for services' reply from the second step meeting is not acceptable to the grievant, or results of mediation is not acceptable, he/she may submit the grievance to the formal hearing process. This involves an impartial hearing officer who is selected on a random basis from a pool of impartial hearing officers. The request for a review before the hearing officer must be received by the commissioner (or his designee) within seven working days after the conclusion of the second step and or mediation. The agency will maintain a list of qualified impartial hearing officers, identified jointly by the agency and the Rehabilitation Council. These hearing officers will have a thorough knowledge of vocational rehabilitation, and are not affiliated with the agency. Upon receiving the request from the grievant for a formal hearing, the commissioner (or his designee) will randomly appoint a hearing officer from the list maintained by the agency. The formal hearing must take place within 45 days of the request by the grievant. The commissioner, or his designee, will arrange for location and time for the hearing. The grievant may have present at this hearing a representative or legal counsel at his/her own expense. Also present at the hearing will be the employee and his/her immediate supervisor. The hearing officer will receive copies of the grievance form and copies of any written information that any party deems appropriate. The conduct of the hearing before the hearing officer will be as follows:
- The hearing officer shall determine the proprietary of attendance at the hearing of those individuals not having a direct interest in the hearing.
- The hearing officer may, at the beginning of the hearing, ask for statements clarifying the issues involved.
- Exhibits offered by the grievant may be received by the hearing officer; when received, they shall be marked and made part of the record.
- The grievant and his/her representative and the agency employee shall then present claims, proof, and witnesses who shall submit to questions or other examinations. The hearing officer, at his/her discretion, may vary this procedure, but shall present full opportunity to all parties and witnesses for presentation of any material or relevant proof.
- The parties shall produce such additional evidence as the hearing officer may deem necessary to reach an understanding or determination of the dispute. The hearing officer shall be the judge of relevancy or materiality of the evidence presented in the case. All evidence shall be taken in the presence of the parties.
After all evidence has been presented, the hearing officer will declare the hearing closed. The hearing officer, for good cause, could reopen the hearing prior to making his/her decision in the case.
The hearing officer will send copies of his/her decision to the grievant, the employee, and the commissioner within 30 days following the conclusion of the hearing. The grievant and all parties shall be informed that the decision of the hearing officer is subject to review by an official from the Governor's office.
The impartial review by the reviewing official from the Governor's office would only occur upon request by one of the parties to the fair hearing; the request must be made within 20 days after the fair hearing decision, otherwise the decision is final.
The reviewing official must provide an opportunity for the submission of additional evidence and information relevant to the final decision. The reviewing official has the authority to overturn or modify all or a part of the fair hearing officer's decision. The reviewing official, however, cannot overturn or modify a decision that supports the position of the customer unless the reviewing official concludes, based on clear and convincing evidence, that the decision is clearly erroneous on the basis of being contrary to the State plan, Rehabilitation Act and regulations, or any State regulation or policy that is consistent with federal requirements.
Selection of the Impartial Hearing Officer
The DVH and the Rehabilitation Council will identify jointly a minimum of three impartial hearing officers, who will be available to serve during the formal phase of the Customer Appeals Process for the Vocational Rehabilitation program. The impartial hearing officers must meet the following requirements:
- Must have had previous work experience in the field of rehabilitation
- Must be knowledgeable of the Rehabilitation Act of 1973, as amended
- Must not be a current employee of DVH
- Must not have any personal or financial interest that would be in conflict with the applicant/or customer's objectivity
The commissioner of the agency or his/her designee will request on a random basis the service of one of the identified public hearing officers when the informal appeal has completed the second step without resolution; mediation did not result in satisfactory resolution for the customer; or, when the individual elected to bypass the mediation or informal process (steps 1 and 2).
Extension of Time
Reasonable time extensions can be granted in the appeals process if one or both parties show good cause.
NOTE: Nothing in this procedure is intended to circumvent or to modify the existing right of DVH to do the following--provided that none of these may be exercised in an arbitrary or capricious manner:
- Establish and maintain service standards
- Determine the methods and means by which services are to be carried out
- Direct the work of its employees
- Maintain the efficiency of governmental operations and services to customers
