DEPARTMENT OF WORKFORCE DEVELOPMENT
The Wisconsin Department of Workforce Development adopts the following rule to repeal DWD 65.03 (10) and (16), 68.05 (3), 68.06 (3), 68.07, 68.10, 68.16 (title) and 75.19 (2) (b) and (c) and (4); to renumber and amend DWD 68.14 (intro.) and (1), 68.15, 68.16 and 75.19 (2); to amend DWD 65.03 (5m), 65.04 (3), 65.06, 65.08 (intro.) and (3), 65.09, 65.11, 68.01, 68.02 (intro.), (1), (2), (3) and (4), 68.02 (5), 68.03, 68.04, 68.05 (1), (2) and (4) to (7), 68.06 (intro.), (1) and (2), 68.08, 68.09, 68.11, 68.12, 68.13, 68.14 (title), 68.17, 75.01,75.02, 75.03 (3), (8), (10), (13) and (14), 75.04, 75.05 (1), 75.08 (intro.) and (4), 75.10 (1) and (2), 75.11 (2), 75.14 (2), 75.16 (1), (6) (a), (7), (8) (b), (14), (15) and (16), 75.17 and 75.19 (2) (title); to repeal and recreate DWD 65.11 (Note), 68.14 (2), (3) and (Note) and 68.15 (title); and to create DWD 68.05 (7) (Note) and 68.15 (1); relating to the order of selection for vocational rehabilitation services, the protection, use, and release of personal information, and the appeal procedures for vocational rehabilitation services.
The statement of scope for this rule, SS 084-21, was approved by the Governor on October 7, 2021, published in register No. 790A2, on October 11, 2021, and approved by the Department of Workforce Development on November 4, 2021. SS 084-21 also proposes changes to the business enterprise program under ch. DWD 60. Those changes will be subject to review and approval by the Rehabilitative Services Administration (RSA) of the U.S. Department of Education. Therefore, the Department will promulgate another rule based on SS 084-21 that addresses those changes after the Department obtains RSA approval for the changes. Analysis Prepared by the Department of Workforce Development
Statutes Interpreted
Statutory Authority
Explanation of Statutory Authority
Section 47.02 (1), Stats., allows the Department to adopt methods of administering the vocational rehabilitation program to maximize federal participation. Section 47.02 (1m), Stats., allows the Department to cooperate with federal government to carry out federal regulations for vocational rehabilitation. Section 47.02 (5), Stats., allows the Department to promulgate rules for aggrieved persons to appeal the Department's determination of eligibility or ineligibility for vocational rehabilitation services or to appeal the furnishing or denial of vocational rehabilitation. Section 47.02 (7) (a), Stats., requires the Department to promulgate rules to administer s. 47.02 (7), Stats., which, with exceptions, prohibits the disclosure of information concerning any person who applies for or receives vocational rehabilitation services without the consent of the person. The exceptions apply to disclosures that are necessary to the administration of ch. 47, Stats., or to carry out a person's rehabilitation plan developed pursuant to ch. 47. Stats. Section 47.02 (7) (b) 2., Stats., allows the Department to promulgate rules allowing a person who has applied for or received vocational rehabilitation services to obtain access to the person's records. Section 103.005 (1), Stats., provides "The department shall adopt reasonable and proper rules and regulations relative to the exercise of its powers and authorities and proper rules to govern its proceedings and to regulate the mode and manner of all investigations and hearings." Section 227.11 (2), Stats, provides.: "Rule-making authority is expressly conferred on an agency as follows: (a) Each agency may promulgate rules interpreting the provisions of any statute enforced or administered by the agency, if the agency considers it necessary to effectuate the purpose of the statute…." Related Statutes or Rules
Chapter HA 1: Currently, the Division of Vocational Rehabilitation (DVR) in the Department of Workforce Development contracts with the Division of Hearings and Appeals (DHA) in the Department of Administration for DHA to provide contested case hearing services. The services include the appointment of administrative law judges (ALJ) to conduct hearings and make findings and orders pursuant to ch. DWD 75. The current memorandum of understanding between DVR and DHA specifies that the hearings are conducted in accordance with federal regulations and DWD rules. However, if DWD rules do not apply to issues before a DHA hearing ALJ , the memorandum of understanding allows DHA to apply rules in ch. HA 1, to the extent consistent with Wisconsin statutes and federal law. Plain Language Analysis
The rule makes the changes described below to chs. DWD 65, 68, and 75, which are administered by DVR. Under this chapter, DVR implements a waiting list called an order of selection that is used to determine which categories of individuals will receive vocational rehabilitation services when resources are not available to serve all categories of eligible individuals who apply for the services. DVR evaluates individuals and places them in categories based on the significance of their disabilities. For DVR to be eligible for federal funding for those services, the order of selection must comply with requirements under Title I of the federal Rehabilitation Act, 29 USC 720 to 751. Prior to passage of the federal Workforce Innovation and Opportunity Act of 2014 (WIOA), Public Law 113-128, the Rehabilitation Act prohibited state agencies such as DVR from providing services under an order of selection to individuals who are not placed in the category for most significant disabilities. However, WIOA amended the Rehabilitation Act to authorize state agencies to provide specific services and equipment for maintaining employment to individuals regardless of their category under the order of selection. This rule amends s. DWD 65.04 (3) to allow DVR to exercise that authority. Currently, s. DWD 65.03 (12) defines "individual with a significant disability" as an individual who has a severe physical or mental impairment which seriously limits one or more functional capabilities and who will need multiple vocational rehabilitation services over an extended period of time. This definition is inconsistent with federal regulations. For purposes of that definition, s. DWD 65.03 (10) and (16) define "multiple services" and "extended period of time." However, the federal regulations do not define those terms and the RSA has advised DVR that those definitions should be repealed to make DVR's rules consistent with the federal regulations. This rule repeals those definitions. The rule also makes the following changes:
1. Currently, s. DWD 65.09 allows a consumer to make a written request for review of the consumer's category placement when new documentation is available. The rule allows a consumer to make an oral or written request for the review when new information is available. 2. Currently, s. DWD 65.11 requires a consumer to submit a request for a hearing on category placement within 12 months of the date that notice about the placement was provided. The rule requires instead that the request must submitted within 180 days of the date of the notice. The rule also revises s. DWD 65.08 (intro.) to require that the Department provide the notice to all consumers who may not receive services due to an order of selection, instead of to all consumers who may not receive services during a 12-month period from the effective date the order of selection. 3. Currently, s. DWD 65.06 prohibits DVR from determining an individual's relative position in the order of selection based on specified factors, including the length of time needed to complete a vocational rehabilitation service. However, the prohibition regarding length of time directly conflicts with the definition of "individual with a significant disability," which, as noted above, refers to an individual who will need multiple services over an extended period of time. The rule resolves this conflict by amending s. DWD 65.06 to eliminate the prohibition regarding length of time. 4. The rule makes minor changes regarding terms used in the chapter.
This chapter imposes requirements for the protection, use, and release of personal information about individuals who apply for or receive vocational rehabilitation services. Currently, the chapter refers to those individuals as clients but other administrative code chapters refer to those individuals as consumers. The rule revises ch. DWD 68 so that it is consistent with the other chapters. Currently, s. DWD 68.03 provides that the chapter applies to persons with access to case records and s. DWD 68.04 (1) prohibits the disclosure of information from case records without informed consent. Also, s. DWD 68.04 (2) imposes requirements on information from case records obtained from the records of a private or public agency or individual. In addition, s. DWD 68.08 requires DVR to ensure that persons with access to case records are aware of their responsibilities regarding confidentiality. The rule amends those provisions to refer to consumer information, which may include case records. The amendments are consistent with s. 47.02 (7) (a), Stats., which generally prohibits disclosures of information. The rule also amends s. DWD 68.06 to clarify that notations about releases of information must be made in a consumer's record when the information is released pursuant to the consumer's informed consent. The chapter also imposes requirements on consumers and other persons who request DVR to disclose consumer information. Section DWD 68.05 (3) requires a consumer who consents to disclosure of information to another person to state the purpose of the disclosure. Section DWD 68.09 requires non-consumers who request information from consumer case files to state the purpose for which the information will be used. The rule eliminates the requirement for consumers and non-consumers to state those purposes. Currently, s. DWD 68.14 requires consumers to make requests in writing for information in their case files. The rule allows consumers to make oral or written requests. The rule also makes the following changes:
1. Currently, s. DWD 68.14 (2) imposes requirements on the release of information that is detrimental to the mental or physical health of a consumer. The rule replaces those requirements with requirements based on 34 CFR s. 361.38 (c) (2) regarding the release of medical, psychological, or other information that may be harmful to a consumer. Currently, s. DWD 68.14 (3) specifies procedures for appeals related to those requirements. The rule requires instead that appeals must be filed within 180 days after the date of notice to the consumer regarding the requirements and provides that the appeals are subject to ch. DWD 75. 2. Currently, s. DWD 68.13 allows for the release of information, other than consumer identifying information, from a consumer's case record to a potential employer without the consumer's consent, but only if the release is to ascertain job placement possibilities. Section DWD 68.13 also requires obtaining the consumer's oral consent to the release whenever possible. The rule eliminates the requirement regarding oral consent. 3. The rule revises requirements in s. DWD 68.12 regarding information released from case records for research purposes so that the requirements are consistent with 34 CFR s. 361.38 (d). 4. The rule creates s. DWD 68.15 (1), which allows consumers to request the amendment of inaccurate and misleading information in their case files. This provision is based on 34 CFR s. 361.38 (c) (4). 5. The rule repeals s. DWD 68.07, which requires DVR to designate a person responsible for the implementation and execution of ch. DWD 68. 6. The rule repeals s. DWD 68.10, which requires non-consumers who are provided information to give certain assurances about the information. 7. The rule eliminates outdated language regarding photocopies from s. DWD 68.16. As required under the federal Rehabilitation Act, this chapter establishes procedures for appealing DVR determinations relating to eligibility for providing, denying, or altering vocational rehabilitation services. The rule amends many provisions of the chapter to clarify that the chapter applies to appeals of a determination of ineligibility for those services and any determination affecting the provision of those services. Currently, s. DWD 75.05 (1) requires an appeal to be filed within 12 months after a determination is mailed. The RSA has informed DVR that the 12-month time period for appeals is the longest in the country. For efficient administration of the vocational rehabilitation services program, the rule changes the deadline for filing an appeal to 180 days after the date of written notice of a determination. The rule also makes the following changes:
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.
