1. Currently, under s. DWD 75.16 (14), the individual who requested the hearing has the first opportunity to present evidence and question opposing witnesses, which is followed by DVR's opportunity to make a presentation and question opposing witnesses. Currently, under s. DWD 75.16 (15), rebuttal of evidence follows the same order. The rule switches the order so that DVR must first present the evidence in support of its decision and the consumer is then allowed the opportunity to present evidence in response. 2. Currently, s. DWD 75.08 requires motions to be filed within 5 working days before a scheduled hearing. The rule provides instead that motions may be filed at any time before a scheduled hearing. 3. Currently, s. DWD 75.10 (1) requires documents to be mailed to the designated representative of an individual who requested a hearing. The rule clarifies that the documents may be sent by mail or electronic mail. 4. The rule eliminates the Department Secretary's authority under s. DWD 75.19 to authorize a designee to modify a decision of a hearing officer. The rule also eliminates requirements regarding the review of hearing officer decisions. These changes align s. DWD 75.19 with federal regulations. Summary of, and comparison with, existing or proposed federal statutes and regulations
The RSA makes grants to state agencies for vocational rehabilitation services under the federal Rehabilitation Act. Federal regulations implementing the grant program are set forth at 34 CFR Part 361. To be eligible for the grants, a state must have a state plan that is approved by the RSA. 29 USC 721 (a) (1) (A). See also 34 CFR 361.2. If vocational rehabilitation services cannot be provided to all eligible individuals, the state plan must include an order of selection that ensures that individuals with the most significant disabilities are selected first to receive the services. 29 USC 721 (a) (5) (C). However, WIOA added a provision to the Rehabilitation Act that allows a state, at its discretion, to serve eligible individuals, whether or not they are receiving vocational rehabilitation services, who require specific services or equipment to maintain employment. 29 USC 721 (a) (5) (D); 34 CFR 361.36 (a) (3) (v). The federal regulations define "individual with a significant disability," in part, as an individual with a disability "[w]hose vocational rehabilitation can be expected to require multiple vocational rehabilitation services over an extended period of time." 34 CFR 361.5 (c) (30) (ii). Unlike ch. DWD 65, the federal regulations do not include definitions for "multiple services" or "extended period of time. To be eligible for federal grants for vocational rehabilitation services, DVR must comply with federal regulations under 34 CFR 361.38 regarding the protection, use, and release of personal information. Under those regulations, DVR must adopt and implement procedures to safeguard the confidentiality of personal information. 34 CFR 361.38 (a) (1). In addition, with certain exceptions, if an applicant or recipient of vocational rehabilitation services makes a written request for information in his or her case file, DVR must release the information to the individual or the individual's representative in a timely manner. 34 CFR 361.38 (c) (1). However, the federal regulations do not explicitly require the request to be in writing. The federal Rehabilitation Act and its implementing regulations require states to establish procedures for the mediation and review of decisions affecting the provision of vocational rehabilitation services to applicants and eligible individuals. 29 USC 722 (c) (1), 34 CFR 361.57. Comparison with rules in adjacent states
Illinois, Iowa, and Minnesota have similar rules related to order of selection. See Ill. Admin. Code title 89, ss. 553.130 and 553.140; Iowa Admin. Code 281-56.6 (6); and Minn. Rules, parts 3300.5010 and 3300.5030. The Iowa and Minnesota rules do not define extended period of time or multiple services for an individual with a significant disability. The Illinois rules define extended period of time but not multiple services. See Ill. Admin. Code title 89, s. 521.20. Minnesota's vocational rehabilitation agency that serves individuals who are blind provides services to all eligible applicants, regardless of order of selection category, who are currently employed and require the services to maintain employment. Michigan does not appear to have any rules regarding order of selection for vocational rehabilitation services. Illinois, Iowa, and Minnesota do not have rules regarding confidentiality. Michigan's rules on confidentiality are set forth at Mich. Admin. Code R 395.55. The rules require requests for information to be in writing, see Mich. Admin. Code R 395.55 (5), but do not specify any other requirements for those requests.
Illinois and Minnesota do not have rules on appeal procedures but have policies that allow a consumer to file an appeal within 60 days after a decision is made. Iowa rules include a 90-day deadline for filing an appeal. Iowa Admin. Code 281-56.22. Michigan rules require consumers to file an appeal within 30 days of the agency notice regarding the agency's determination or decision. Mich. Admin. Code R 395.88 (2).
Summary of factual data and analytical methodologies
Policy analysts and staff of the Department's Division of Vocational Rehabilitation's senior leadership team reviewed WIOA, federal regulations, state statutes, and consulted with the Wisconsin Rehabilitation Council. The data used by the Department to prepare this proposed rule and analysis comply with s. 227.14 (2m), Stats. Analysis and supporting documents used to determine effect on small business or in preparation of an economic impact analysis
The Statement of Scope for the rule was posted for 14 days to solicit comments on economic impact from the public and no comments were received.
Fiscal Estimate and Economic Impact Analysis
See attached.
Effect on small business
The proposed rule will have no significant economic impact on small businesses, as defined in s. 227.114 (1), Stats. Agency contact person
Questions related to this rule may be directed to:
Meredith Dressel, Deputy Administrator
Division of Vocational Rehabilitation
Department of Workforce Development
P.O. Box 7852
Madison, WI 53707
(608) 405-4615
Place where comments are to be submitted and deadline for submission
Mark Kunkel, Rules and Records Coordinator
Department of Workforce Development
P.O. Box 7946
Madison, WI 53707
(608) 267-7713
Comments will be accepted until a date to be determined.
Section 1. DWD 65.03 (5m) is amended to read:
DWD 65.03 (5m) “Consumer" means an individual certified determined by the department as eligible for vocational rehabilitation services.
Section 2. DWD 65.03 (10) and (16) are repealed.
Section 3. DWD 65.04 (3) is amended to read:
DWD 65.04 (3) Providing services under an order of selection. If an order of selection is imposed under sub. (1), the department shall provide services to consumers with the most significant disabilities and consumers who require specific services or equipment to maintain employment before serving consumers with less significant disabilities as prescribed under s. DWD 65.07. Section 4. DWD 65.06 is amended to read:
DWD 65.06 Prohibited practices. The department shall determine the relative position of an individual in the order of selection without regard to length duration of residency, type of disability, age, sex, race, color, creed, national origin, source of referral, expected employment outcome, type of service needs, costs of services, length of time needed to complete service or income level.
Section 5. DWD 65.08 (intro.) is amended to read:
DWD 65.08 (intro.) The department shall provide written notification to all consumers who may not receive services during a 12-month period from the effective date of due to an order of selection. The notice shall include all of the following:
Section 6. DWD 65.08 (3) is amended to read:
DWD 65.08 (3) Information on how to request a reevaluation of category placement based on new documentation information not previously considered during the evaluation process under s. DWD 65.07 (1).
