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

Current through June, 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.