Current through Supplement No. 394, October, 2024
1. As used in this
section:
a. "Claimant" means an applicant or
eligible individual who is dissatisfied with any determination made by the
division that effects the provisions of vocational rehabilitation services and
who has made a timely request for review of the determination.
b. "Party" or "parties" refers to the
division and to a claimant.
c.
"Request for review" means a request for informal review, mediation, or an
appeal under this section.
2. The division shall inform each individual
applying for or receiving vocational rehabilitation services of the
availability of mediation services, the name and address of the division's
chief of field services, the manner in which a mediator may be selected, and
the availability of the client assistance program to assist the individual
during mediation sessions. The division shall provide the right to mediation
notice at the time the:
a. Individual applies
for vocational rehabilitation services;
b. Individual is assigned to a category set
forth in section
75-08-01-23;
c. Individualized plan for employment is
developed; and
d. Whenever the
vocational rehabilitation services for an individual are reduced, suspended, or
terminated.
3. The
division shall inform each individual applying for or receiving vocational
rehabilitation services of the appeals procedure, the name and address of the
division's chief of field services, the manner in which an impartial hearing
officer may be selected, and the availability of the client assistance program.
The division shall provide the right to appeal notice at the time the:
a. Individual applies for vocational
rehabilitation services;
b.
Individual is assigned to a category set forth in section
75-08-01-23;
c. Individualized plan for employment is
developed; and
d. Whenever the
vocational rehabilitation services for an individual are reduced, suspended, or
terminated.
4. The
division shall make reasonable accommodation of the individual's disability in
the conduct of the process that is undertaken to review the determination with
which the claimant is dissatisfied.
5. Nothing in this chapter may be construed
to forbid any informal, mutually consensual meetings or discussions between the
individual and the division.
6. A
claimant who is dissatisfied with any determination made by the division that
affects the provision of vocational rehabilitation services may request a
timely review of that decision to the division, by requesting an informal
review, mediation or appeal hearing. A request for review is timely if the
filing date of the request is no more than thirty days after notice of the
determination with which the claimant is dissatisfied. If appropriate, any
request for review may be made through claimant's authorized
representative.
7. A claimant's
appeal may not result in suspension, reduction, or termination of vocational
rehabilitation services pending resolution of claimant's appeal unless:
a. The claimant or, in appropriate cases, the
claimant's authorized representative, requests a suspension, reduction, or
termination of services; or
b.
There is evidence fraud has occurred or the vocational rehabilitation services
were obtained through misrepresentation, collusion, or criminal conduct by
claimant or claimant's authorized representative.
8. A claimant may request an informal review
to resolve the decision under dispute without mediation or an appeal hearing. A
claimant's request for informal review does not prohibit claimant of the right
to an appeal hearing or mediation.
a. A
claimant may not be required to go through an informal review prior to, or
instead of, an appeal hearing.
b. A
written request for an informal review must be made by claimant to division
within thirty days of the determination with which claimant is
dissatisfied.
c. The informal
review must be conducted by either the division's chief of field services, or a
division employee appointed by the chief of field services, who has had no
prior involvement in the case.
d.
An informal review must be conducted within fifteen days of the initial request
unless both parties agree additional time is necessary. Informal review may not
delay an appeal hearing if one has been requested. The appeal hearing must be
conducted within sixty days of the claimant's request for review of a
determination made by division with which claimant is dissatisfied, unless the
division and the claimant agree to a specific extension of time.
e. The informal review process, if completed,
must result in a decision by the division regarding the division's
determination under dispute. The division shall notify claimant by writing of
the decision within ten days of the informal review, unless circumstances
require additional time.
f. If the
informal review does not resolve the issue, the claimant, or authorized
representative, may request an appeal hearing or mediation. The claimant shall
notify division within fifteen days of the informal review decision that the
claimant wishes to proceed with mediation or an appeal hearing.
9. The claimant may request
mediation by a qualified and impartial mediator as a means to resolve a dispute
with a decision by the division. Both parties must agree to the request. The
claimant may bring an authorized representative to assist during the mediation
process. A claimant's request for mediation does not prohibit claimant of the
right to an appeal hearing.
a. The request for
mediation must be submitted, in writing, to the division within thirty days of
the disputed decision, or within fifteen days of issuance of the informal
review decision. The request shall identify the decision being disputed, why it
is being disputed, and what solution is requested.
b. A qualified and impartial mediator
arranged by the division, pursuant to written division policy, must be provided
at no cost to the claimant. Mediation sessions must be held in a location and
manner convenient to the claimant and the division.
c. The claimant or, if appropriate, the
claimant's authorized representative, must be given the opportunity to submit
evidence and other information that supports the claimant's position.
d. Mediation may not delay the claimant's
right to pursue an appeal hearing unless both parties agree additional time is
necessary. The appeal hearing must be conducted within sixty days of the
claimant's request for review of a determination made by division with which
claimant is dissatisfied, unless the division and the claimant agree to a
specific extension of time.
e. If
an agreement is reached pursuant to mediation, the consensus reached by both
parties must be documented in writing by the mediator and provided to both
parties.
Each party shall sign the agreement, which indicates
agreement with its terms and a commitment to fulfill each party's respective
responsibilities. If agreement on all issues is reached, the parties shall
withdraw any pending informal review or appeal hearing request.
f. At any point in the mediation
process, either party may elect to terminate mediation.
g. If mediation is not successful, the
claimant may request an appeal hearing regarding the decision under
dispute.
h. Discussions that occur
during the mediation process are confidential and may not be used as evidence
in any subsequent proceedings.
i.
Costs of mediation must be paid by the division. The division is not required
to pay for legal or other representation for claimant.
10. A claimant may request an appeal hearing
to resolve the decision under dispute without having requested or engaging in
mediation or an informal review.
a. Written
request for an appeal hearing must be made to division within thirty days of
the determination with which the claimant is dissatisfied.
b. A hearing by an impartial hearing officer
selected by the division must be conducted within sixty days of the claimant's
request for review of a determination made by the division with which claimant
is dissatisfied, unless resolution is achieved before that time, or the parties
agree to an extension.
c. The
claimant or, if appropriate, the claimant's authorized representative, must be
given the opportunity to present witnesses during the hearing and to examine
all witnesses and other relevant sources of information and evidence.
d. The impartial hearing officer shall:
(1) Make a decision based on federal
vocational rehabilitation regulations and state regulations and policies
consistent with federal requirements; and
(2) Provide to the claimant or, if
appropriate, the claimant's authorized representative, and to the division a
full written report of the findings and grounds for the decision within thirty
days of the completion of the hearing.
e. The hearing officer's decision is
final.
General Authority: NDCC 50-06-16,
50-06.1
Law Implemented: NDCC 50-06.1-02, 50-06.1-04,
50-06.1-10
