Section 75-08-01-37 - Vocational rehabilitation determinations - Administrative review procedures - Appeals1. 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; andd. 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; andd. 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; orb. 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.N.D. Admin Code 75-08-01-37
Adopted by Administrative Rules Supplement 371, January 2019, effective 1/1/2019.Amended by Administrative Rules Supplement 2022-387, January 2023, effective 1/1/2023.General Authority: NDCC 50-06-16, 50-06.1
Law Implemented: NDCC 50-06.1-02, 50-06.1-04, 50-06.1-10