HAR §17-400.1-6. Mediation

(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 400.1-10 §17-400.1-6 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. 400.1-11 §17-400.1-6 (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 400.1-12 §17-400.1-6 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 400.1-13 §17-400.1-6 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. (b) The division shall pay for the cost of the mediation process but is not required to pay for any costs related to the representative of an applicant or eligible individual authorized under paragraph (a)(11). (c) The qualified and impartial mediator shall be compensated for conducting the mediation at a rate determined by the division, and shall conduct the mediation in accordance with the following procedures 400.1-14 §17-400.1-6 and shall prescribe additional procedures as the circumstances warrant to insure fair and orderly conduct of the mediation: (1) The mediator shall preside over the entire proceedings and shall assist the parties in reaching agreement based on the provisions of the approved State plan, the Act, Federal VR regulations, and applicable State rules or policies. (2) Each session shall be scheduled in a timely manner and shall be held in a location that is convenient to the parties to the dispute. (3) Any decision to postpone or extend the mediation at the request of either party or both parties shall be made by the mediator and must allow for implementing the formal hearing procedures within the 60-day time period allowed for resolving the request for review should the parties fail to reach agreement through mediation, unless the parties agree to a specific extension of time. The 60-day time period begins from the date the division receives the individual’s request for review and includes the period of time spent in mediation. (4) The mediator shall ensure that all discussions that occur during the mediation process shall be confidential and may not be used as evidence in any subsequent due process hearing or civil proceeding, by requiring that both parties to the mediation sign a confidentiality pledge on a preprinted form prepared by the division, prior to the commencement of the mediation. (5) The mediator shall decide the merits of any adjournment and shall conclude the mediation when satisfied that all pertinent and relevant factors needed to reach an agreement have been presented and examined. (6) If mediation is unsuccessful in resolving the disputes, the mediator shall terminate 400.1-15 §17-400.1-6 the mediation process and submit a written summary of the mediation, including the reasons for the termination to the parties. (7) If mediation is successful, the mediator shall prepare and share with the parties to the dispute, a written summary of the agreements reached by the parties. The mediator may use the division’s pre-printed form or other format. [Eff AUG 13 2007 ] (Auth: HRS §§347-4, 348-3, 348-6; 29 U.S.C. §722(c); 34 C.F.R. §361.57) (Imp: HRS §§347- 4, 348-3, 348-6; 29 U.S.C. §722 (c); 34 C.F.R. §361.57)