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 information about consumers, 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 amends s. DWD 68.15 to allow 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). The rule also requires DVR to document such requests and DVR's responses to the requests. 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. 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
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