Rules Clearinghouse No. 22-008 Proposed Final Draft
March 3, 2022
ORDER OF THE WISCONSIN
DEPARTMENT OF WORKFORCE DEVELOPMENT
The Wisconsin Department of Workforce Development adopts the following rule to repeal DWD 65.03 (10) and (16), 68.05 (3), 68.06 (3), 68.07, 68.10, 68.16 (title) and 75.19 (2) (b) and (c) and (4); to renumber and amend DWD 68.08, 68.14 (intro.) and (1), 68.16 and 75.19 (2); to amend DWD 65.03 (5m), 65.04 (3), 65.06, 65.08 (intro.) and (3), 65.09, 65.11, 68.01, 68.02 (intro.), (1), (2), (3) and (4), 68.02 (5), 68.03, 68.04, 68.05 (intro.), (1), (2) and (4) to (7), 68.06 (intro.), (1) and (2), 68.09, 68.11, 68.12 (intro.), (1), (2) and (3), 68.13, 68.14 (title), 68.15, 68.17, 75.01,75.02, 75.03 (3), (8), (10), (13) and (14), 75.04, 75.05 (1), 75.08 (intro.) and (4), 75.10 (1) and (2), 75.11 (2), 75.14 (2), 75.16 (1), (6) (a), (7), (8) (b), (14), (15) and (16), 75.17 and 75.19 (2) (title); to repeal and recreate DWD 65.11 (Note) and 68.14 (2), (3) and (Note); and to create DWD 68.02 (4m), 68.05 (7) (Note) and 68.12 (2g) and (2r); relating to the order of selection for vocational rehabilitation services, the protection, use, and release of personal information, and the appeal procedures for vocational rehabilitation services.
The statement of scope for this rule, SS 084-21, was approved by the Governor on October 7, 2021, published in register No. 790A2, on October 11, 2021, and approved by the Department of Workforce Development on November 4, 2021. SS 084-21 also proposes changes to the business enterprise program under ch. DWD 60. Those changes will be subject to review and approval by the Rehabilitative Services Administration (RSA) of the U.S. Department of Education. Therefore, the Department will promulgate another rule based on SS 084-21 that addresses those changes after the Department obtains RSA approval for the changes. Analysis Prepared by the Department of Workforce Development
Statutes Interpreted
Statutory Authority
Explanation of Statutory Authority
Section 47.02 (1), Stats., allows the Department to adopt methods of administering the vocational rehabilitation program to maximize federal participation. Section 47.02 (1m), Stats., allows the Department to cooperate with federal government to carry out federal regulations for vocational rehabilitation. Section 47.02 (5), Stats., allows the Department to promulgate rules for aggrieved persons to appeal the Department's determination of eligibility or ineligibility for vocational rehabilitation services or to appeal the furnishing or denial of vocational rehabilitation. Section 47.02 (7) (a), Stats., requires the Department to promulgate rules to administer s. 47.02 (7), Stats., which, with exceptions, prohibits the disclosure of information concerning any person who applies for or receives vocational rehabilitation services without the consent of the person. The exceptions apply to disclosures that are necessary to the administration of ch. 47, Stats., or to carry out a person's rehabilitation plan developed pursuant to ch. 47. Stats. Section 47.02 (7) (b) 2., Stats., allows the Department to promulgate rules allowing a person who has applied for or received vocational rehabilitation services to obtain access to the person's records. Section 103.005 (1), Stats., provides "The department shall adopt reasonable and proper rules and regulations relative to the exercise of its powers and authorities and proper rules to govern its proceedings and to regulate the mode and manner of all investigations and hearings." Section 227.11 (2), Stats, provides.: "Rule-making authority is expressly conferred on an agency as follows: (a) Each agency may promulgate rules interpreting the provisions of any statute enforced or administered by the agency, if the agency considers it necessary to effectuate the purpose of the statute…." Related Statutes or Rules
Chapter HA 1: Currently, the Division of Vocational Rehabilitation (DVR) in the Department of Workforce Development contracts with the Division of Hearings and Appeals (DHA) in the Department of Administration for DHA to provide contested case hearing services. The services include the appointment of administrative law judges (ALJ) to conduct hearings and make findings and orders pursuant to ch. DWD 75. The current memorandum of understanding between DVR and DHA specifies that the hearings are conducted in accordance with federal regulations and DWD rules. However, if DWD rules do not apply to issues before a DHA hearing ALJ , the memorandum of understanding allows DHA to apply rules in ch. HA 1, to the extent consistent with Wisconsin statutes and federal law. Plain Language Analysis
The rule makes the changes described below to chs. DWD 65, 68, and 75, which are administered by DVR. Under this chapter, DVR implements a waiting list called an order of selection that is used to determine which categories of individuals will receive vocational rehabilitation services when resources are not available to serve all categories of eligible individuals who apply for the services. DVR evaluates individuals and places them in categories based on the significance of their disabilities. For DVR to be eligible for federal funding for those services, the order of selection must comply with requirements under Title I of the federal Rehabilitation Act, 29 USC 720 to 751. Prior to passage of the federal Workforce Innovation and Opportunity Act of 2014 (WIOA), Public Law 113-128, the Rehabilitation Act prohibited state agencies such as DVR from providing services under an order of selection to individuals who are not placed in the category for most significant disabilities. However, WIOA amended the Rehabilitation Act to authorize state agencies to provide specific services and equipment for maintaining employment to individuals regardless of their category under the order of selection. This rule amends s. DWD 65.04 (3) to allow DVR to exercise that authority. Currently, s. DWD 65.03 (12) defines "individual with a significant disability" as an individual who has a severe physical or mental impairment which seriously limits one or more functional capabilities and who will need multiple vocational rehabilitation services over an extended period of time. This definition is inconsistent with federal regulations. For purposes of that definition, s. DWD 65.03 (10) and (16) define "multiple services" and "extended period of time." However, the federal regulations do not define those terms and the RSA has advised DVR that those definitions should be repealed to make DVR's rules consistent with the federal regulations. This rule repeals those definitions. The rule also makes the following changes:
1. Currently, s. DWD 65.09 allows a consumer to make a written request for review of the consumer's category placement when new documentation is available. The rule allows a consumer to make an oral or written request for the review when new information is available. 2. Currently, s. DWD 65.11 requires a consumer to submit a request for a hearing on category placement within 12 months of the date that notice about the placement was provided. The rule requires instead that the request must submitted within 180 days of the date of the notice. The rule also revises s. DWD 65.08 (intro.) to require that the Department provide the notice to all consumers who may not receive services due to an order of selection, instead of to all consumers who may not receive services during a 12-month period from the effective date the order of selection. 3. Currently, s. DWD 65.06 prohibits DVR from determining an individual's relative position in the order of selection based on specified factors, including the length of time needed to complete a vocational rehabilitation service. However, the prohibition regarding length of time directly conflicts with the definition of "individual with a significant disability," which, as noted above, refers to an individual who will need multiple services over an extended period of time. The rule resolves this conflict by amending s. DWD 65.06 to eliminate the prohibition regarding length of time.
