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. 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. The rule also amends s. DWD 75.16 (8) (b) to allow notices of certain rescheduled hearings to be sent by 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
The deadline for comments was February 18, 2022.
Text of Rule
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:
