Impartial due process hearing for Vocational Rehabilitation Services — Department of Rehabilitation
What you can do to win!
This article is a follow-up to my article called Free College, Free Grad School, Free Money to Start a Business.
This article is in regard to Vocational Rehabilitation Services, or the Department of Rehabilitation.
Every issue, such as food stamps, section 8 housing, or vocational rehabilitation services, can have different processes, procedures, and rules. This article probably will not apply to other areas, such as food stamps, section 8 housing, Medicaid.
Appealing the State’s Decision
Whenever you have a complaint against a State’s government for issues relating to food stamps, section 8 housing, or vocational rehabilitation services, you can request an Impartial due process hearing. This means that you are appealing their decision.
If you lose in an Impartial due process hearing, then you can request an administrative review.
In some states, the administrative review is conducted in court.
For an impartial due process hearing, every State is different and has different procedures, and so I cannot review all of them. I will describe the worst ones I have encountered.
However, some States are fair, where other states have passed laws designed to ensure you lose.
Example 1. What the government said is considered true, and it cannot be questioned.
In most States, whatever the government said is considered true, and it cannot be questioned unless the statement is completely ridiculous.
You had 3 business consultants review your business plan, with a combined experience of 60 years, and they all said independently that it is a good plan and should be funded.
Your counselor said he does not think it is a good plan. Yet, your counselor has no real business expertise. Unless you present the fact that your counselor has no real business expertise and your 3 business consultants have a combined experience of 60 years, you will lose.
Your counselor represents the State, and what the State says is considered true, and it cannot be questioned unless it is ridiculous.
OR
The State could have their own business consultant that said your plan is not good. Unless you can prove that your 3 business consultants are reputable, you will lose.
The only way to win in these States is to say that the government did not follow the law.
Example 2. The government did not follow the law.
If you prove the government did not follow the law, you might still lose because the legal procedure might say that you cannot present the law at an Impartial due process hearing.
This is because questions concerning the law are beyond the authority of the Impartial due process hearing judge and have to be presented in court.
Therefore, the law might also say that the Impartial due process hearing judge can only consider State policy. Thus, if State policy violates the law, the Impartial due process hearing judge cannot consider it, which will guaranty that you will lose.
The law might also say that if you did not present it at the Impartial due process hearing, you cannot present it in an administrative review or in court.
This means that you cannot present federal laws at the Impartial due process hearing, which will guaranty that you will lose at the Impartial due process hearing and lose in court.
The only way to have a chance at winning is to state the FEDERAL law VERBALLY, the complete federal law, or as much as you can, then let the Impartial due process hearing judge tell you repeatedly that he cannot consider it.
This might be the only way you will be able to present federal laws in an administrative review or in court.
The most important thing I can tell is the following.
1) Verbally state it at the Impartial due process hearing. If it is not Verbally stated, the court might not be able to consider it. In some States, the court can only consider what is in the transcript.
Even if you have it in writing and request the Impartial due process hearing judge reviews what you have written unless Verbally stated, the court might still not be abed to consider it.
2) If you have to go to court, DO NOT go to State court. Go to FEDERAL COURT.
State court is more of a political body, where everyone has contributed to everyone’s campaign. People get appointments to become Judges or heads of different agencies because of who they know.
Article 6 of the US constitution states that Federal law always overrides State law, but State court judges have come up with creative reasoning not to follow the US constitution.
Federal court judges always follow federal laws.
Impartial Due Process Hearing for Vocational Rehabilitation Services or Department of Rehabilitation
When the Rehabilitation Act was written, they knew about all of the State laws that would ensure you will lose and attempted to write into the Rehabilitation Act clauses to prevent this.
The following should work in every State, but it does not mean that you will win.
When Vocational Rehabilitation Services or the Department of Rehabilitation deny you any service, you can file an appeal, which means requesting an Impartial due process hearing. You do this by filling out a form.
The following is what you put on the form, and tailor it to your situation.
I am requesting accommodations for my disability.
My medical record or my Psychological Assessment states that my disability encompasses issues relating to speech, hearing, problem solve skills, processing speed, memory (short term or long term), reading, writing, concentration, focus, all of which affect my ability to communicate.
Therefore, I need the hearing judge or officer to read and understand everything attached to this form, including the following federal laws and federal regulations.
Federal laws 29 U.S. Code § 722, and 29 U.S. Code § 723
Federal regulations 34CFR361.5, 34CFR361.48, 34CFR361.45, 34CFR361.50, 34CFR361.52, 34CFR361.54, and 34CFR361.57.
You might not use all of these laws. However, if you have to go to court, this gives you a better chance of winning your case in court. Plus, the laws you do not use here you might have to use in court.
This next part is VERY IMPORTANT.
Next, state the services you have been denied.
One of the excuses Vocational Rehabilitation Services or the Department of Rehabilitation have used is to say that the services you are requesting are not vocational rehabilitation services. Because of this, federal laws do not apply.
Remember, some of the services you stated from 34 CFR § 361.48 should be in conjunction with 34 CFR § 361.5- Applicable definitions.
State the following on the forms, or attach it to the form.
I have been denied the following Vocational Rehabilitation Services, which are the services I am requesting.
29 U.S. Code § 723. Vocational rehabilitation services
(a)(12) Occupational licenses, tools, equipment, and initial stocks and supplies
(a)(13) Technical assistance and other consultation services to conduct market analyses, develop business plans, and otherwise provide resources, to the extent such resources are authorized to be provided through the statewide workforce development system, to eligible individuals who are pursuing self-employment or telecommuting or establishing a small business operation as an employment outcome
34 CFR § 361.48 — Scope of vocational rehabilitation services for individuals with disabilities
(b)(16) Occupational licenses, tools, equipment, initial stocks, and supplies.
(b)(19) Technical assistance and other consultation services to conduct market analyses, develop business plans, and otherwise provide resources, to the extent those resources are authorized to be provided through the statewide workforce development system, to eligible individuals who are pursuing self-employment or telecommuting or establishing a small business operation as an employment outcome.
34 CFR § 361.48 — Scope of vocational rehabilitation services for individuals with disabilities
(8) Transportation in connection with the provision of any vocational rehabilitation service and in accordance with the definition of that term in § 361.5(c)(57).
34 CFR § 361.5 — Applicable definitions
(c )(57)(i) Examples. The following are examples of expenses that would meet the definition of transportation. The examples are purely illustrative, do not address all possible circumstances, and are not intended as substitutes for individual counselor judgment.
Example 2: The purchase and repair of vehicles, including vans, but not the modification of these vehicles, as modification would be considered a rehabilitation technology service.
34 CFR § 361.48 — Scope of vocational rehabilitation services for individuals with disabilities
(5) In accordance with the definition in § 361.5(c)(39), physical and mental restoration services, to the extent that financial support is not readily available from a source other than the designated State unit (such as through health insurance or a comparable service or benefit as defined in § 361.5(c)(10)).
34 CFR § 361.5 — Applicable definitions
(39) Physical and mental restoration services means -
(i) Corrective surgery or therapeutic treatment that is likely, within a reasonable period of time, to correct or modify substantially a stable or slowly progressive physical or mental impairment that constitutes a substantial impediment to employment;
(ii) Diagnosis of and treatment for mental or emotional disorders by qualified personnel in accordance with State licensure laws;
(iii) Dentistry;
(xv) Special services for the treatment of individuals with end-stage renal disease, including transplantation, dialysis, artificial kidneys, and supplies; and
(xvi) Other medical or medically related rehabilitation services.
Next, you want to try to ensure that the hearing judge only considers the State policy that is congruent with federal laws. Therefore, state the following.
According to 34 CFR § 361.57 — Review of determinations made by designated State unit personnel, an Impartial hearing officer cannot consider any State policy or State law that are not consistent with Federal requirements.
(e)(3) The impartial hearing officer must -
(i) Make a decision based on the provisions of the approved vocational rehabilitation services portion of the Unified or Combined State Plan, the Act, Federal vocational rehabilitation regulations, and State regulations and policies that are consistent with Federal requirements
All of this will help ensure that if you have to go to court, you will be able to present all of the federal laws. Plus, if the court finds that the hearing judge did not follow 34 CFR § 361.57 (e)(3), that ruling can be dismissed or thrown out.
Next, state the following.
To ensure that the court will review my case under federal law, I am presenting the following.
29 U.S. Code § 722 (c )(1) said, “Each State shall establish procedures for review through an impartial due process hearing of, determinations made by personnel of the designated State unit.”
29 U.S. Code § 722 (c )(2)(A)(i) said, “the eligible individual has the right to obtain review of determinations described in paragraph (1) in an impartial due process hearing under paragraph (5);”
29 U.S. Code § 722 (c )(5)(A) said, “A due process hearing described in paragraph (2) shall be conducted by an impartial hearing officer.”
29 U.S. Code § 722 (c )(5)(I) said, “If a party brings a civil action under subparagraph (J) to challenge a final decision of a hearing officer under subparagraph (A) ….. the final decision involved shall be implemented pending review by the court.”
Thus, 29 U.S. Code § 722 (c )(5)(J) is a court’s review of an agency’s decision.
29 U.S. Code § 722 (c )(5)(J)(i) said, “Any party aggrieved by a final decision described in subparagraph (I), may bring a civil action for review of such decision. The action may be brought in any State court of competent jurisdiction or in a district court of the United States of competent jurisdiction without regard to the amount in controversy. (ii) Procedure In any action brought under this subparagraph, the court — (I) shall receive the records relating to the hearing under subparagraph (A) and the records relating to the State review under subparagraphs (D) through (F), if applicable; (II) shall hear additional evidence at the request of a party to the action; and (III) basing the decision of the court on the preponderance of the evidence, shall grant such relief as the court determines to be appropriate.”
A Trick You Can Do — res judicata & The Rooker-Feldman Doctrine
The Rooker-Feldman Doctrine means that if you start in federal court, you cannot switch to State court, or if you start in State court, you cannot switch to federal court.
res judicata is double Jeopardy but for civil court cases. It means that once the judge makes a ruling, you cannot bring the issue back to court.
Trick #1
However, the Rehabilitation Act provides a way around both. So, if you lose, you might be able to bring your case back to court or change from State court to federal court.
First, you have to request Vocational Rehabilitation Services or the Department of Rehabilitation to close your case.
Then wait for 1 to 6 months and reapply for services.
It is Very Important that they do not reopen your case. You want a new case with a new case number.
When you go to court, you want to make sure the court knows (in writing and verbally) that your case was closed, you had to reapply, and now you have a new case with Vocational Rehabilitation Services or the Department of Rehabilitation.
Trick #2
Another trick you can do is ask for new services.
Go through the list of services in 34 CFR § 361.48 and see what else you might need or want. Since these are new services means that this is a new issue. Therefore, res judicata & The Rooker-Feldman Doctrine does not apply.
However, you still will not be able to bring up any old issues.
If you can combine trick #1 with #2 will give you the best chance.
Conclusion
Remember, try and VERBALLY state as much as you can at the impartial due process hearing.
If you have to go to court, file your complaint in FEDERAL court and not State court. Some federal courts have forms that you can fill out and instructions regarding the process.
None of this means that you will win, but it will give you a fighting chance.
Good luck. Best of luck.
One of my wishes is to get all the policies changed back to what they were in the ’90s, so that we can attain the services they need.
I have met so many that needed services and could not get them or did not even know what services they could ask for. This has resulted in many not being able to attain meaningful employment, keep employment, or graduate college.
Many of them feel hopeless and as if they have no future.
