Hawaii Administrative Rules
Title 17 - DEPARTMENT OF HUMAN SERVICES
Department of Human Services
Chapter 400.1 - VOCATIONAL REHABILITATION ADMINISTRATION
Section 17-400.1-6 - Mediation
Universal Citation: HI Admin Rules 17-400.1-6
Current through February, 2024
(a) The following mediation procedures shall be followed whenever an applicant or eligible individual or, as appropriate, individual's representative requests mediation prior to a hearing, to resolve the individual's request for review of the division's decision or action taken concerning the provision of vocational rehabilitation services, or the provision of general services for the blind.
(1) Participation in the mediation process
shall be voluntary on the part of the applicant or eligible individual, as
appropriate, and on the part of the division.
(2) The mediation process shall not be used
to deny or delay the applicant's or eligible individual's right to pursue
resolution of the dispute through hearing, or any other rights provided under
title I of the Act.
(3) The
mediation process must be conducted within the same 60-day time period allowed
for conducting the formal hearing to resolve the request for review. However,
the mediation process must allow time for holding the formal hearing by the
60th day, should the parties fail to reach agreement
through mediation, unless the parties agree to a specific extension of time to
conduct the hearing.
(4) At any
point during the mediation process, either party or the mediator may elect to
terminate the mediation. In the event the mediation is terminated, either party
may pursue resolution through hearing.
(5) The mediation process shall be conducted
by a qualified and impartial mediator defined as follows:
(A) Is not an employee of a public agency
other than an employee of a public agency who is an administrative law judge,
hearing examiner, employee of a State office of mediators, or employee of an
institution of higher education (an individual is not considered to be an
employee of the department or division solely because the individual is paid by
the department or division to serve as a mediator);
(B) Is not a member of the State
Rehabilitation Council for the division;
(C) Has not been involved previously in the
vocational rehabilitation of the applicant or eligible individual;
(D) Is knowledgeable of the VR services
program and the applicable Federal and State laws, regulations, and policies
governing the provision of VR services;
(E) Has been trained in effective mediation
techniques consistent with any State-approved or State-recognized
certification, licensing, registration, or other requirements; and
(F) Has no personal, professional, or
financial interest that would be in conflict with the objectivity of the
individual during the mediation proceedings.
(6) The division shall maintain a list of
qualified and impartial mediators.
(7) The applicant or eligible individual or,
as appropriate, individual's representative, must select a first and second
choice of impartial mediators from the list of qualified and impartial
mediators:
(A) By a random method, from
numbered chips corresponding to the names on the division's list of qualified
and impartial mediators; or
(B) By
name, in the order of preference of the individual or individual's
representative.
(8) The
individual or individual's representative, shall be informed that the purpose
for naming a second choice is to avoid delay should the mediator of first
choice not be available, and that the individual or individual's representative
will be provided opportunity for further selection if the mediator of first and
second choice is not available, as soon as this becomes known to the
division.
(9) The individual's or
individual's representative's selection shall be documented on the division's
form for selection of impartial mediator and filed in the division's record of
services for the individual.
(A) A copy of
the completed selection form containing the selections shall be given to the
individual or individual's representative as early as possible.
(B) A copy of the completed selection form
and other necessary documents shall be immediately forwarded to the division
administrator.
(10) An
applicant or eligible individual or, as appropriate, the individual's
representative shall be provided an opportunity to submit during mediation
sessions evidence and other information that supports the applicant's or
eligible individual's position.
(11) An applicant or eligible individual
shall be allowed to be represented during mediation sessions by counsel or
other advocate selected by the applicant or eligible individual.
(12) Interpreter or reader services shall be
arranged by the division for an applicant or eligible individual or, as
appropriate, individual's representative who is not English-speaking or who is
deaf, blind, or deaf-blind.
(13) A
written position statement explaining the reasons for the division's action or
decision, and citing the authority or the specific sections of the State plan,
statutes, rules or policy on which the decision was based, shall be submitted
to the mediator, and the applicant or eligible individual or, as appropriate,
individual's representative in advance of the mediation. A copy of the
statement shall be filed in the division's record of services for the applicant
or eligible individual.
(14) The
division may not institute a suspension, reduction, or termination of VR
services being provided to an applicant or eligible individual, including
evaluation and assessment services and IPE development, pending a resolution
through mediation under this section, unless:
(A) The individual or, in appropriate cases,
the individual's representative requests a suspension, reduction or termination
of services; or
(B) The division
has evidence that the services have been obtained through misrepresentation,
fraud, collusion, or criminal conduct on the part of the individual or the
individual's representative.
(15) Notice of mediation shall be issued by
the mediator in writing and sent by certified mail with return receipt
requested at least 15 days before the first mediation session. The notice shall
include a statement of:
(A) The date, time,
and place of the first mediation session;
(B) The legal authority under which the
mediation is to be held;
(C) The
particular sections of the statutes and rules involved;
(D) An explicit statement in plain language
of the issues involved and the facts alleged by the division in support
thereof, provided that if the division is unable to state such issues and facts
in detail at the time the notice is served, the initial notice may be limited
to a statement of the issues involved; and
(E) The fact that the applicant or eligible
individual is allowed to be represented by counsel or other advocate if the
applicant or eligible individual so chooses.
(16) The division may pay for transportation
for the applicant or eligible individual to and from the place of the mediation
when the individual is unable to meet such costs and requests for payment by
the division.
(b) The division shall pay for the cost of the mediation process but is not required to pay for any costs related to the representative of an applicant or eligible individual authorized under paragraph (a) (11).
(c) The qualified and impartial mediator shall be compensated for conducting the mediation at a rate determined by the division, and shall conduct the mediation in accordance with the following procedures and shall prescribe additional procedures as the circumstances warrant to insure fair and orderly conduct of the mediation:
(1) The mediator shall preside over the
entire proceedings and shall assist the parties in reaching agreement based on
the provisions of the approved State plan, the Act, Federal VR regulations, and
applicable State rules or policies.
(2) Each session shall be scheduled in a
timely manner and shall be held in a location that is convenient to the parties
to the dispute.
(3) Any decision to
postpone or extend the mediation at the request of either party or both parties
shall be made by the mediator and must allow for implementing the formal
hearing procedures within the 60-day time period allowed for resolving the
request for review should the parties fail to reach agreement through
mediation, unless the parties agree to a specific extension of time. The 60-day
time period begins from the date the division receives the individual's request
for review and includes the period of time spent in mediation.
(4) The mediator shall ensure that all
discussions that occur during the mediation process shall be confidential and
may not be used as evidence in any subsequent due process hearing or civil
proceeding, by requiring that both parties to the mediation sign a
confidentiality pledge on a preprinted form prepared by the division, prior to
the commencement of the mediation.
(5) The mediator shall decide the merits of
any adjournment and shall conclude the mediation when satisfied that all
pertinent and relevant factors needed to reach an agreement have been presented
and examined.
(6) If mediation is
unsuccessful in resolving the disputes, the mediator shall terminate the
mediation process and submit a written summary of the mediation, including the
reasons for the termination to the parties.
(7) If mediation is successful, the mediator
shall prepare and share with the parties to the dispute, a written summary of
the agreements reached by the parties. The mediator may use the division's
pre-printed form or other format.
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