Young Adults in Transition: Vocational Rehabilitation Services: Part 6

Every person engaging with their state VR Agency has specific rights under federal law. If the VR client disagrees with a decision by the VR agency that affects their VR services, they have the right to appeal the decision. Common decisions that the individual may disagree with include:

• Not being eligible for VR services;
• Placement into an Order of Selection category;
• VR not approving the employment goal they selected for their IPE;
• Denial of a choice of a service provider;
• Refusal to allow the individual to pursue a self-employment goal;
• Refusal to provide a specific VR service, such as assistive technology;
• Decreasing, suspending, or terminating VR service;
• Closure of the case; or
• Denial of VR Post Employment Service

ADVOCACY TIP  |  Encourage students and their parents to learn about and understand their rights to VR services and the VR appeal process in their state.

Any time the VR agency makes a decision about an individual’s eligibility or services, it must send the client a Written Notice that explains its decision. The Written Notice must contain:

• The VR agency’s decision
• The reason for the decision
• A notice about appeal rights, including an enclosed Request for Review of Determination form, and
• A description of services available through the Client Assistance Program (CAP), see below.

ADVOCACY TIP  |  Emphasize the importance of reading all communications (letters, emails, etc.) that individuals receive from the VR agency. If the individual doesn’t understand or agree with something VR has decided, they should contact the VR counselor and ask for clarification.

To appeal the VR agency’s decision, clients must return their VR agency’s Request for Appeal form. The form and deadlines for their response should have been included in their Written Notice.

If the individual does not receive Written Notice from VR, a formal written request, in letter or email form, is also acceptable to file an appeal. The individual still has the right to appeal its decision.

The VR Agency’s request for an appeal form will provide the client with a choice of several informal and formal processes to get their appeal started. These include:

Administrative Review/Informal Hearing – The VR agency will review the disagreement by having the client or their representative meet with the VR Counselor’s supervisor and/or have the VR Program Manager try to resolve the issue.

Mediation – Mediation is a voluntary alternative for resolving disputes with the VR agency. Both the client and the VR agency must agree to a Mediation in order for a Mediation conference to take place. Mediation involves meeting with VR and an impartial and qualified mediator to try to resolve the dispute. The mediator is not an employee of VR. The Mediation conference must be scheduled in a timely manner and in a location that is convenient to the client, their representative and the VR representative. Discussions occurring and information provided during a mediation conference cannot be used as evidence in any subsequent due process hearing or civil proceeding. VR must pay for all fees relating to the Mediation.

Fair Hearing – A Fair Hearing is a formal appeal process where the case is presented in front of an impartial administrative law judge/hearing officer. Both parties are allowed to provide evidence, bring witnesses, and share information that supports each position.

If a decision is made in the client’s favor at any of the above appeal stages, the IPE should be modified to reflect new employment goals or VR services that the client will now be receiving.

Additional appeal options are available beyond the Fair Hearing determination.

State Reviewing Official – States may establish a second level of administrative review. The review officer must be the chief official of the designated state VR agency or an official from the office of the Governor. If the state does establish a second level of administrative review, either party may appeal to it within 20 days of the hearing officer’s decision. The review officer cannot overturn a hearing decision unless, based on clear and convincing evidence, the decision is “clearly erroneous” based on an approved State VR Plan, state or federal law, or policy that is consistent with federal law.

Lawsuit – Either the individual or the VR agency may appeal a final administrative decision to state or federal court. They must have appealed the VR agency’s decision in a Fair Hearing before they can file a lawsuit. If they wish to appeal a Fair Hearing or State Reviewing Official’s final decision to a state or federal court, they should seek immediate legal advice. As a plaintiff in these courts they must have legal representation from a licensed attorney. Pending the court’s review, the final administrative decision will be implemented.

ADVOCACY TIP  |  Every individual engaging with a state VR agency has specific rights to appeals of VR decisions under federal law.

Advocacy Assistance Available through the Client Assistance Program

Every state and US Territory has a Client Assistance Program (CAP). CAP provides advocacy services related to VR issues free of charge.

The VR client or applicant should contact CAP if they:

• Have recently become disabled and are wondering how to apply for rehabilitation services;
• Are denied the right to apply for services;
• Are found to be not eligible for services;
• Disagree with the Individualized Plan for Employment (IPE);
• Disagree with VR’s decision to close the case;
• Are having difficulty finding rehabilitation services and want information about other resources;
• Are concerned about their relationship with their counselor or staff members;
• Are dissatisfied with the rehabilitation services they are receiving;
• Do not understand their rights or the services available to them under the ADA or Rehabilitation Act; or
• The case has been closed and the client wants to be reconsidered for rehabilitation services.

Contact the Local CAP

If at any time the client needs information or assistance regarding VR services or their rights under these programs, tell them to contact their state’s Client Assistance Program (CAP). To learn how to contact the local CAP, visit ndrn.org/about/ndrn-member-agencies and scroll down to the state. In some states the CAP is included in the general protection and advocacy program, and in others it is a separate program. The site for that state will list the CAP separately in those states.