7 CCR 1105-1-9.104 - RIGHTS TO REVIEW AND APPEAL

9.104.1 Review of DVR Determinations [Rev. eff. 3/17/17]

A. A recipient who is dissatisfied with any determination made by the Division of Vocational Rehabilitation (DVR) that affects the provision of vocational rehabilitation services may request a review of that decision through an informal or formal process. The individual may also utilize the mediation process to resolve disputes. If appropriate, any request for review or mediation may be made through the individual's authorized representative.

B. A recipient shall be notified, in writing, of their appeal rights, established procedures for review of determinations, and the availability of the Client Assistance Program each time the following occur:

1. At the time of program involvement for a potentially eligible student with a disability;

2. At the time of application for services;

3. At the time of placement into an Order of Selection (OOS) priority for services category;

4. At the time of Individualized Plan for Employment (IPE) development and any time the IPE is amended;

5. Any time that DVR makes a decision to reduce, suspend or terminate planned services;

6. At the time a case is closed for reasons of ineligibility; and,

7. At the time a case is closed from a deferred services wait list.

C. A recipient shall be responsible for their personal costs (including, but not limited to, legal representation and copying fees) associated with the individual's review, appeal or mediation unless otherwise ordered.

D. An applicant's or eligible individual's appeal shall not result in suspension, reduction or termination of vocational rehabilitation services pending resolution of their appeal unless:

1. A recipient or, if appropriate, the individual's representative requests a suspension, reduction or termination of services; or,

2. There is evidence that fraud has occurred or that the vocational rehabilitation services were obtained through misrepresentation, collusion or criminal conduct.

9.104.2 Mediation of Disputes [Eff. 3/17/17]

A. An applicant or eligible individual may seek mediation by a qualified and impartial mediator as a means to resolve a dispute with the Division of Vocational Rehabilitation (DVR). The goal of mediation is to achieve consensus between the individual and DVR. The individual may bring an authorized representative to assist them during the mediation process.

1. The request for mediation shall be submitted, in writing, to the DVR administrative office at any time during the review process and no later than the 60th day from the date the formal hearing is requested. The request shall identify the decision or action that is being disputed, why it is being disputed and what solution is requested. A qualified and impartial mediator arranged through the state shall be provided at no cost to the individual.

2. If the recipient requests mediation, DVR shall participate unless:

a. It is not possible to resolve the dispute without placing the Department in clear violation of state or federal law, rules, policy or the approved State Plan;

b. A mediated outcome is not possible based on documented evidence from previous experience with the individual concerning the issue under dispute;

c. The individual has committed acts of violence, has threatened acts of violence or has engaged in other forms of harassment against Department staff or any other individuals involved in the provision of vocational rehabilitation services; or,

d. The individual has failed to fulfill their responsibilities under a previous mediation agreement with DVR concerning the issue under dispute.

B. DVR may seek mediation by a qualified and impartial mediator as a means to resolve a dispute with a recipient before the individual requests an informal review or a formal appeal if the individual agrees to participate.

C. Mediation shall commence within twenty-one (21) days of the request for mediation and shall not delay conduct of the formal appeal unless both parties agree additional time is necessary.

Mediation is limited to a maximum of six (6) hours of mediation session(s) unless both parties and the mediator agree that additional hours may provide a resolution. Mediation shall be completed within one (1) calendar month of the initial request unless both parties and the impartial mediator agree that additional time is necessary.

D. If mediation is successful, the consensus reached by both parties shall be documented in writing by the mediator and provided to both parties within seven (7) calendar days. 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 formal appeal request. DVR shall not agree to any provision that it believes is contrary to state and federal law, rules, and policy or the approved State Plan.

E. If mediation is not successful, the individual may initiate, or proceed with, an informal review or a formal appeal of the issue under dispute.

F. Failure of the individual to honor their commitment under the terms of the mediation agreement shall void the mediation agreement.

9.104.3 Informal Review [Rev. eff. 3/17/17]

The recipient may request an informal review to resolve the issue(s) under dispute without mediation or conduct of a formal appeal. The informal resolution process will result in a decision by DVR regarding the issue under dispute. An individual shall not be required to go through an informal review prior to or instead of a formal appeal. An informal review shall be conducted within thirty (30) calendar days of the initial request unless both parties agree that additional time is necessary. Informal review shall not delay a formal appeal if one has been requested. If the informal review does not resolve the issue(s), and the formal appeal process has not been requested, the individual may request a formal appeal.

A. Informal review begins with a request for the applicable DVR Supervisor to review a decision concerning the provision of vocational rehabilitation services.

B. If the applicant or eligible individual is not satisfied with the decision made by the Supervisor, the applicant or eligible individual may take the next step and submit a written request for review to the Deputy of Field Services (or designee) to review the decision.

9.104.4 Formal Appeal Process [Rev. eff. 3/17/17]

An applicant or eligible individual may initiate a formal appeal regarding a determination to resolve the issue(s) under dispute without mediation or conduct of an informal review.

A. A written request for a formal appeal must be submitted to the Colorado Department of Personnel and Administration, Office of Administrative Courts (OAC), within ninety (90) calendar days of the subject determination made by the DVR counselor or other DVR staff that affects a provision of pre-employment transition services or vocational rehabilitation services.

B. The written request must be a statement detailing the basis of appeal, including a description of the determination made by DVR staff that the individual is appealing. The statement should include a description of what the individual wants from the appeal.

C. A recipient and DVR may voluntarily participate in mediation through the OAC. Mediation may not be used to deny or delay an individual's right to pursue resolution of the dispute through the formal appeal process unless both parties agree that additional time is necessary for mediation.

9.104.5 Formal Appeal before the Office of Administrative Courts [Rev. eff. 3/17/17]

A. When the Office of Administrative Courts (OAC) receives a request for a formal appeal, the OAC shall notify DVR and the Attorney General's Office, Labor and Employment Unit, that the request has been docketed and send a copy of the formal appeal request to DVR and the Attorney General's Office.

B. A representative from the Attorney General's office, on behalf of DVR, shall serve a notice to set an informal pre-hearing conference within ten (10) calendar days of receipt of the formal appeal request from the OAC. The purpose of the informal pre-hearing conference shall be to:

1. Identify the issues for appeal.

2. Set a date for DVR to provide a written statement summarizing the background and history of services for the appeal.

3. Set a date for a response from the appellant to respond to the summary and identify specific issues for the appeal. The appellant should identify specific remedies being sought, if known.

4. Set the date for hearing within sixty (60) days, unless both parties agree that more time is needed and agree to extend beyond the sixty days.

5. Set dates for an exchange of witness and exhibit list, as well as exchanging exhibits or other evidence.

C. The Administrative Law Judge shall conduct the hearing within sixty (60) calendar days of an individual's request for formal appeal unless both parties agree additional time is necessary.

D. The Administrative Law Judge shall conduct the hearing on formal appeal in accordance with the Administrative Procedure Act, Section 24-4-105, C.R.S. The rights of the parties include:

1. Each party shall have the right to present his or her case or defense by oral and documentary evidence, to submit rebuttal evidence, and to conduct cross-examination.

2. Subject to these rights and requirements, where a hearing will be expedited and the interest of the parties will not be subsequently prejudiced thereby, the Administrative Law Judge may receive all or part of the evidence in written form or by oral stipulations.

3. Hearings will be conducted at a site convenient to the appellant. A telephonic hearing may be conducted as an alternative to a face-to-face hearing if requested by either party. If either party requests a face-to-face hearing, the written request for a face-to-face hearing must be filed with the OAC and the other party at least ten (10) calendar days before the scheduled hearing.

E. At the conclusion of the hearing, unless the Administrative Law Judge allows additional time to submit documentation, the Administrative Law Judge shall take the matter under advisement. After considering all the relevant evidence presented by the parties, the Administrative Law Judge shall render an initial decision.

F. The initial decision shall uphold, modify or reverse DVR's determination affecting the provision of pre-employment transition services or vocational rehabilitation services to a recipient or the decision regarding eligibility for services.

G. The initial decision shall be rendered within thirty (30) calendar days of the completion of the hearing.

H. When an appellant fails to appear at a duly scheduled hearing, having been given proper notice, without having given timely advance notice to the Administrative Law Judge of acceptable good cause for inability to appear at the hearing at the time, date and place specified in the notice of hearing, then the appeal shall be considered abandoned and the Administrative Law Judge shall enter an initial decision dismissing appeal.

9.104.6 Further Appeal [Eff. 3/17/17]

A. The initial decision rendered by the Administrative Law Judge shall become the final decision of the agency in absence of an exception filed by either party within thirty days after service of the initial decision, unless extended by the agency.

B. If a timely exception to the initial decision is filed by the appellant, the agency shall issue a final decision and advise the individual of his/her right to seek judicial review in the State District Court, City and County of Denver.

C. Any recipient who wishes to challenge the final agency decision may also bring a civil action for review of such decision (i.e. judicial review per CRS 24-4-105). The final agency decision shall be implemented pending the results of the review under a civil action. The civil action may be brought in any State court or in a district court of the United States, regardless of the amount in controversy. All records relating to the hearing shall be provided to the court in which the civil action shall be heard. Additional evidence may be provided upon request of the individual or the Director of DVR. The decision of the court and any relief granted as a result of the civil action shall be deemed final and binding.

9.104.7 Grievance of Discrimination on the Basis of Disability [Eff. 3/02/19]

An individual who believes they have experienced discrimination in violation of the Americans with Disabilities Act (ADA), Section 504 of the Rehabilitation Act of 1973, as amended, or the Colorado Anti-Discrimination Act (CADA) is entitled to due process and may file a grievance.

A. Informal Resolution: An individual who believes they have experienced discrimination on the basis of disability may seek informal resolution by contacting the Deputy for Field Services, or their designee, as soon as possible to explain the concern and propose a solution. Informal review shall be conducted in a timely manner that shall not delay a formal grievance. If the informal review does not resolve the issue(s), and the formal grievance has not already been filed, the individual may seek resolution through the formal grievance procedures.

B. Formal Grievance Procedures: An individual, or the individual's authorized representative, may initiate a formal grievance in lieu of seeking an informal resolution or if the informal resolution process did not satisfactorily resolve the concern.

1. Formal Written Complaint: A written complaint shall be considered when submitted to the ADA and Section 504 Coordinator of the Colorado Department of Labor and Employment within thirty (30) calendar days of the alleged offense or incident. The complaint shall include the name, address, and telephone number of the person filing the complaint; a description of the incident or alleged offense with as much information as possible; the date and location of the incident or alleged offense; and a proposed agency response that would resolve the issue(s) to the satisfaction of the complainant.

Within thirty (30) calendar days of receipt of the complaint, the ADA and Section 504 Coordinator shall conduct an investigation of the circumstances involved. At the conclusion of the investigation, the ADA and Section 504 Coordinator shall respond in writing or, as appropriate, in a format accessible to the complainant, explaining the position of the Department.

2. Additional Action: If the response of the written complaint by the ADA and Section 504 Coordinator does not satisfactorily resolve the concern, the complainant, or the complainant's authorized representative, may contact the Colorado Civil Rights Division (CCRD) or the United States Department of Education's Office of Civil Rights (OCR) within sixty (60) days of the Department's decision. An individual does not need to seek resolution through DVR's information resolution or written complaint processes prior to filing a discrimination complaint with CCRD or OCR. A complaint directly to CCRD must be filed within sixty (60) days of the alleged incident of discrimination. A complaint directly to OCR must be filed within 180 days of the alleged incident of discrimination.

Notes

7 CCR 1105-1-9.104

40 CR 04, February 25, 2017, effective 3/17/2017 41 CR 05, March 10, 2018, effective 3/30/2018 42 CR 03, February 10, 2019, effective 3/2/2019 42 CR 17, September 10, 2019, effective 9/30/2019 43 CR 02, January 25, 2020, effective 3/1/2020 45 CR 21, November 10, 2022, effective 11/30/2022