New Mediation Program Procedures Manual · 2018. 4. 3. · ACCES-VR Mediation Procedures Manual – April 2016 Page 2 I. Introduction Since 1998, the Federal Vocational Rehabilitation

ACCES-VR Mediation Procedures Manual – April 2016 Page 1

ACCES-VR Adult Career and Continuing Education Services – Vocational Rehabilitation

Mediation Program Procedures Manual

Table of Contents

Section Page

I. Introduction…………………………………………………………………. 2

II. VR Mediation Procedures………………………………………………… 3-7

III. Acronyms…………………………………………………………………… 8-12

IV. Vouchering Procedures and Forms…………………………................. 17

V. CDRC Member Number Listing…………………………………………. 18

VI. Letters and Templates.……………………………………………………. 19-25

VII. ACCES-VR Legislation, Rules, Policy and Procedures………………. 26-45

VIII. CaMS Flowchart……………………………………………………………. 46

IX. Contacts and Resources…………………………………………………. 47

X. NYSDRA Contract Programs Complaint Procedures…………………. 48-56


I. Introduction

Since 1998, the Federal Vocational Rehabilitation Act mandated that “Each state shall establish procedures for mediation of, and procedures for review through an impartial due process hearing of, determinations made by personnel of the designated State unit that affect the provision of vocational rehabilitation services to applicants.” Under the provisions of this law, ACCES-VR (Office of Adult Career and Continuing Education Services – Vocational Rehabilitation) has contracted with NYSDRA (The New York State Dispute Resolution Association) to provide mediation services through the Community Dispute Resolution Centers located in each county in New York State. The requirements of the law indicate that procedures shall ensure that the mediation process is voluntary; a mediation process shall be made available whenever a request is made by an individual receiving ACCES-VR services; that the mediation is conducted by a qualified and impartial mediator who is trained in effective mediation techniques; and mediation should not be used to deny or delay the right of an individual to an impartial hearing. This procedure manual was developed to provide the CDRC intake staff and their volunteer practitioner mediators with a guide to the procedural intake requirements and forms necessary for their contract with The New York State Dispute Resolution Association. By using these guidelines, NYSDRA and the CDRCs will be able to comply with the program requirements of the NYS Education Department ACCES-VR Office. Since this manual is designed to assist CDRCs, any comments or recommendations will be appreciated. All questions or comments should be made to:

The New York State Dispute Resolution Association, Inc.

Attn: ACCES-VR Program Manager

4 Pine West Plaza, Suite 411

Albany, NY 12205

Phone: 518-687-2240 ext. 10

Fax: 518-687-2245

E-mail: [email protected]; Web site: www.nysdra.org.

mailto:[email protected]

http://www.nysdra.org/


II. ACCES-VR Mediation Procedures

STAGE ONE - Requesting Mediation

1.) An individual (consumer)* applying for or receiving ACCES-VR services (Adult Career and Continuing Education Services –Vocational Rehabilitation) who is dissatisfied with any decision made by ACCES-VR may seek to resolve that dissatisfaction through informal review, administrative review, mediation and/or an impartial hearing. The following options are available to an individual who wants to appeal an ACCES-VR decision:

Informal Review: The individual meets with their counselor and the counselor’s supervisor

Administrative Review: The individual communicates their concerns to the District Office Manager or designee

Mediation: The individual communicates their concerns to an Impartial Mediator.

Impartial Hearing: The individual states their concerns before an Impartial Hearing Officer.

2.) ACCES-VR will advise individuals of their rights, the steps of the mediation and review processes, and the availability of assistance from the Client Assistance Program (CAP) at the time an application is made, when an individualized plan for employment (IPE) is developed, when an impasse is reached, or when services are reduced, suspended or terminated. A statement of these rights will be included at application, the consumer’s IPE and the notification of case closure. Information about the mediation process also will be available through general publications that describe the review process.

3.) Individuals may request mediation when they inform ACCES-VR in writing or email of their dissatisfaction

with an ACCES-VR decision. This request may be a letter or the completion of the agency’s Form VR-711 (Section VI). If the individual cannot write, the request can be dictated at the District Office and witnessed by two ACCES-VR staff members. Once the written request for mediation has been received by ACCES-VR, the individual should be given the option to initiate the scheduling of Mediation directly with the CDRC or ACCES-VR staff can contact the CDRC.

4.) ACCES-VR must have Mediation available as an option to be exercised by the individual and must

consider participating when the individual selects this option. This does not prevent staff from reviewing the issue and contacting the individual if a more expedient means to resolve the dispute becomes apparent.

5.) There may be extraordinary circumstances in which an effort at Mediation may appear to be futile to the District Office Manager or designee. In these cases, the District Office Manager must discuss the situation with Manager of the Quality Assurance Unit and based on a joint decision, may decline to schedule Mediation. The declination should be documented and sent to the individual and a copy placed in the case record.

6.) A written Request for Mediation is to be treated by ACCES-VR in the same manner as a formal request for a hearing. The impartial hearing must be scheduled within 60 days of the written request, unless the consumer indicates a willingness to delay the scheduling of the impartial hearing until the completion of mediation. In these instances, the impartial hearing will be scheduled to occur within 60 days of the consumer’s decision to reject solutions offered through mediation.

7.) Mediation is voluntary on the part of each party and will only take place if both parties agree. Mediation is

not a prerequisite to nor should it delay the review process. * Hereafter referred to as “individual.”


STAGE TWO - Referral Process

1.) Each CDRC serves as the referral and scheduling agent. 2.) The ACCES-VR District Office, upon receiving a request for mediation, will contact the selected CDRC

office (referral agent) located in their region, to alert them of the need to schedule mediation. (List of ACCES-VR District Offices, Section VII)

The ACCES-VR district office will provide the CDRC with a copy of the consumer’s written request for

mediation and in writing, by phone or in person – a description of the issue from the agency perspective.

3.) The district office will provide the name and phone number of the individual who will represent ACCES-VR

at mediation. The ACCES-VR representative should be the District Office Manager or designee. The District Office Manager or designee may not agree to a resolution which is contrary to State or Federal law, regulation or ACCES-VR policy.

STAGE THREE - Intake Interview Process

1.) Upon receipt of a request for mediation from ACCES-VR or the consumer, appropriate staff of the CDRC will contact both parties to discuss at a minimum the following:

a.) The correct names, addresses, telephone numbers of participants. b.) The individual’s right to withdraw at any time from mediation, before, after or during the mediation

process, and request an impartial hearing.

c.) The voluntary nature of the mediation process on the part of both parties. d.) A convenient site and time for the mediation. This includes either party’s need for facilities accessible

for people with disabilities. If you are unable to conduct the mediation at your center, determine what facility might be acceptable to both parties, maintaining neutrality in site selection. ACCES-VR offices should not be used as mediation sites, nor should homes of individuals. There may be a rare exception where an individual is homebound. This should be dealt with on a case by case basis by calling NYSDRA at (518) 687-2240.

e.) Determine mediation participants. Individuals may bring representatives or family members to

Mediation. Be sure to request advanced notification from either party if they will be bringing attorneys or other representatives (e.g., advocates). This will enable you to inform all parties that there will be others present. If an individual is bringing representatives or attorneys, the appropriate staff of the CDRC will notify the ACCES-VR District Office of this in advance of the mediation session. It is the primary role, however, of the individual and the ACCES-VR representative to speak for himself/herself in the mediation session. The Mediation session will focus only on direct participation from the ACCES-VR representative and the individual receiving ACCES-VR services. All other parties will participate at the direction of the Mediator unless the individual is unable to participate because of the disability or communication issues.

f) If an attendee will be an advocate or attorney, appropriate staff members of the referring CDRC will

obtain contact information regarding the additional parties and call to explain their role to them. Note: Individuals cannot be denied the right to representation by their attorney at mediation. The individual will notify the regional CDRC in advance if a representative will be involved. The center will notify the ACCES-VR district office of this, also in advance of the hearing. The actual Mediation session will be with only the ACCES-VR representative and the individual, unless the individual needs assistance due


to the disability or communications issues. All other attendees will participate at the direction of the mediator.

g) Reasonable accommodations are provided by the CDRC.

h) The responsibilities of each party to bring any documents they feel are relevant to the issues being

presented at mediation. However, participants should understand that mediation does not involve findings of facts or the strict weighing of evidence as in a formal impartial hearing review. Participants should be prepared to describe the factual background behind the dispute and to discuss their desired outcome. ACCES-VR participants must also be prepared to describe the legal and policy context around which the dispute arose, as well as the factual details of the situation. All parties should be prepared to discuss and consider each other’s viewpoints and be willing to cooperate in seeking resolution acceptable to both.

i) The need for each party to set aside enough time for the mediation session without interruption and without the need to leave early.

j) A brief description of the mediation process including the need for each party to recognize that

mediation requires a good faith effort in order to reach a mutually satisfactory agreement. Encourage each party to prepare a list of options that they might propose to settle the issues of dispute at the mediation session.

k) Whether or not an individual has also applied for an impartial hearing.

If an individual contacts the CDRC directly, staff should contact the ACCES-VR District Office in their region to ensure ACCES-VR’s awareness of the referral and to obtain a copy of the VR-711 Form (or written appeal request) and a description of the issue from the agency perspective.

STAGE FOUR - Scheduling of Mediation

1.) Once contact with individual participants have been made, the CDRC will schedule a room to conduct the mediation if the consumer wishes the hearing to be in the area in which he/she resides and to contact a mediator in that area. The CDRC needs to ensure that the location is accessible for individuals with disabilities.

2.) The CDRC will maintain a list of mediators within their region who have been trained by ACCES-VR to

provide mediation services. If the CDRC is unable to obtain a mediator from the CDRC in the area in which the consumer resides, they will call NYSDRA at (518) 687-2240 for a list of other nearby mediators.

3.) The CDRC will then assign a mediator trained to mediate ACCES-VR cases through the NYSDRA and

ACCES-VR’s Training Program. That mediator shall be knowledgeable in the laws relating to the provision of vocational rehabilitation services under Title I of the Rehabilitation Act.

4.) The CDRC will make appropriate arrangements for and convene the mediation proceedings as quickly as

possible upon the receipt of the request for mediation. This timeframe is most important when an individual has requested impartial hearing at the same time.

5.) Prior to the Mediation session, the Mediation center will conduct an intake interview with the individual to

collect additional information regarding the issue. The center will ask the District Office to provide a description of the issue, from the District Office perspective.

6.) The mediation proceedings will be convened at a date, time and location accessible to both parties, within

two weeks of the intake interview. ACCES-VR will pay the cost of the Mediation session.


7.) The CDRC will notify both parties in writing of the date, time and location of the mediation proceedings, in

the dominant language of the participants or other mode of communication where appropriate (Reminder Notice, Section V).

8.) The dispute resolution center will provide appropriate interpretive or alternative communications services

as needed and feasible.

STAGE FIVE - The Mediation Session

1.) When the parties arrive for mediation, all parties should sign the appropriate Mediation Authorization Form and Mediation Participation Form (Section VI).

2.) When mediation has resulted in successful negotiation of a partial or full agreement on areas in dispute

between the individual and the ACCES-VR designee, the mediator will document the terms of the agreement in writing and obtain the signatures of the individual and ACCES-VR designee.

3.) The mediator will ensure that the individual and ACCES-VR representative have a copy of the agreement

and that it will be presented to the individual and ACCES-VR for signature immediately at the mediation session. The consumer and the ACCES-VR representative will sign the Agreement. The mediator will, whenever appropriate, provide the written agreement in the dominant language of the individual or other alternative mode of communication. If an interpreter has been provided, they will translate the agreement appropriately at the mediation session.

4.) The mediator will inform the parties of their ability to consent to a time-limited “Conditional Agreement” in

lieu of “No Agreement” if the parties thought additional input was needed before indicating full agreement. The parties could also provide “Conditional Agreement” if they agreed that they wanted to give further consideration to the proposal. This is not encouraged but can be done, if necessary.

5.) When the mediation does not result in the negotiation of a resolution of all issues being mediated, the

mediator should indicate this in the body of the agreement, e.g. “Both parties agree that the issue(s) surrounding …remain(s) unresolved.”

6.) The case report (Section IV), once completed by the scheduling CDRC should be sent to the ACCES-VR

representative attending the mediation within two days of the mediation session. THIS IS VERY TIME SENSITIVE, AND IMPORTANT FOR ACCES-VR.

It is important that mediators thoroughly fill out the case report, particularly describing the name of the Individuals present, the issues at mediation, and any problems encountered. CDRC Coordinators may also wish to add information, particularly if problems encountered included scheduling problems. ACCES-VR will use this for their statistical analysis and has emphasized its importance.


7.) Parties will be asked to complete the Mediation Process Questionnaire (Section IV) to NYSDRA at:

The New York State Dispute Resolution Association, Inc. Attn: Carla Schlist

4 Pine West Plaza, Suite 411 Albany, NY 12205

Phone: 518-687-2240 ext. 10 Fax: 518-687-2245

E-mail: [email protected]

IMPORTANT FOLLOW-UP INFORMATION

If questions arise regarding agreement follow-up, the following may be helpful: 1.) The ACCES-VR representative will ensure that the terms of the written agreement will be made part of the

record of service and will form the basis for future decision making. 2.) When the mediation has resulted in agreement on some of the issues in dispute, the ACCES-VR

representative will make the partial agreement part of the record of service. The remaining issue(s) can be dealt with through impartial hearing.

3.) The ACCES-VR representative will be responsible for canceling the impartial hearing when a full

agreement is reached. 4.) It is the ACCES-VR representative’s responsibility to notify the ACCES-VR QA/Monitoring Unit of the

outcome of Mediation by a faxed or scanned copy of the written agreement or summary. 5.) The individual may discontinue the mediation or retract an agreement reached in mediation even after

signing the consent agreement. The ACCES-VR District Office, however, is obligated to carry out the terms of the agreement, if the appropriate representative signs the agreement.

6.) If the individual does retract the agreement and wishes to appeal the initial ACCES-VR decision to an

Impartial Hearing Officer, a new written request descriptive of the issue as it then exists will be required. The written agreement can be provided as an exhibit and discussed by ACCES-VR in the presentation of its case to the Impartial Hearing Officer.

7.) The discussion that takes place during the mediation session is confidential and will not be recorded for the

case record. The discussion that occurred cannot be described or presented as evidence at an Impartial Hearing.



Section III

Acronyms Associated with the Vocational Rehabilitation System

(This document is not a complete listing)

A

ACCES Adult Career and Continuing Education Services


ADL Adult Daily Living

ADOM Assistant District Office Manager

AR Administrative Review B

BN Background Note

BP Blood Pressure

BPSS Bureau of Proprietary School Supervision

BI-LAT Bi-Lateral (could be hearing loss, amputation…)

BOCES Board of Cooperative Education Services

C

CA Cancer

CaMS Case Management System

CAP Client Assistance Program

CB Commission for the Blind

CBA Community Based Agency

CDL Commercial Driving License

CP Cerebral Palsy

CF Cystic Fibrosis

CMA County Mental Health

CN Chronological Note

CO Central Office

CRC Core Rehabilitation Service Contract

CRP Community Rehabilitation Program

CVA Cerebrovascular Accident/Stroke

D

DD Developmental Disability

DDPC Developmental Disabilities Planning Council

DFY Division for Youth

DO District Office


DOC Director of Counseling

DOH Department of Health

DOL Department of Labor

DOM District Office Manager

DOT Dictionary of Occupational Titles

DSM Diagnostic and Statistical Manual of Mental Disorders

DSS Department of Social Services

DSU Designated State Unit

DVE Diagnostic Vocational Evaluation

E

EE Extended Evaluation

EEG Electroencephalogram

EKG Electrocardiogram

EPE Extended Period of Employment, a Social Security incentive that allows individuals to “bank” their SSI check to help them achieve their vocational goal and be employed

G

GATB General Aptitude Test Battery

I

Integrated Employment Jobs that integrate individuals with disabilities with non-disabled coworkers

IH Impartial Hearing

IHO Impartial Hearing Officer

ILC Independent Living Center

IPE Individualized Plan for Employment

IRWE Impairment-related work expenses, a Social Security benefit that encourages employment

J

Job Coach An individual trained to provide on-the-job services to individuals with disabilities. The job coach breaks down the job into parts so the trainee can learn until the consumer becomes proficient

L

LD Learning Disability

LPN Licensed Practical Nurse

M

MD Muscular Dystrophy

MG Myasthenia Gravis

MOU Memorandum of Understanding


MR Mental Retardation

MS Multiple Sclerosis

MSD Most Significantly Disabled

MT Mobility Trainer

N

NGO Non-Governmental Organization

NYSCB New York State Commission for the Blind

NYSED New York State Education Department

NYSDRA New York State Dispute Resolution Association

O

OASAS Office of Alcoholism and Substance Abuse

OFCS Office for Family and Children Services

OMH Office of Mental Health

OMRDD Office of Mental Retardation and Developmental Disabilities – obsolete (Now OPWDD

OOH Occupational Outlook Handbook

OPWDD Office for People with Developmental Disabilities

OSC Office of State Comptroller

OSER Office of Special Education and Rehabilitation Services

OTA Occupational Therapy Assistant

OT Occupational Therapy

OTJ On-the-job training.

P

PA Physician’s Assistant

PARA Paraplegic (person who experiences paralysis on half the body)

PASS Plan of Achieving Self-Support, another Social Security incentive that allows individuals to “bank” their SSI check to help them achieve their vocational goal and be employed

PES Post Employment Services

PTA Physical Therapy Assistant

PT Physical Therapy

Q

QA Quality Assurance

QUAD Quadriplegia or Quadriplegic

R

RCD Rehabilitation Counselor for the Deaf

RN Registered Nurse


RT Retinitis Pigmentosa

RSA Rehabilitation Services Administration

RUBELLA Measles

S

SAPA State Administrative Procedures Act

SBE Small Business Enterprise

SCA Sickle Cell Anemia

SE Supported Employment

SED State Education Department

SFY State Fiscal Year

SGA Substantial Gainful Activity

SLE Systemic Lupus Erythematosus

SRC State Rehabilitation Counsel

SSA Social Security Administration

SSI Social Security Insurance

SSDI Social Security Disability Insurance

SSN Social Security Number

STA Speech Therapy Assistant

ST Speech Therapy

Status(es) A term used to refer to “where” in the Vocational Rehabilitation Process the individual is (i.e., applicant status, training status). Each status has a code number associated with it that assists the counselor in tracking the consumer’s file.

SVRC Senior Vocational Rehabilitation Counselor

T

TANF Temporary Assistance for Needy Families

TBI Traumatic Brain Injury

TDD Telecommunication for the deaf

TIA Transient Ischemic Attack/Small Stroke

TJTC Targeted Job Tax Credit (Older persons may not know this term has been outdated by WOTC)

Transition Secondary student transitioning into the beginning of the adult services world

TTW Ticket to Work

TTY Teletypewriter for the deaf

TWE Trial Work Experience

U

US Usher’s Syndrome (another term for RT)

V


VESID Vocational and Educational Services for Individuals with Disabilities (preceded ACCES, was the office in which both VR and Special Education were administered)

VOC EVAL Vocational Evaluation. A method of vocationally assessing an individual’s abilities, skills and interests related to employment.

VR Vocational Rehabilitation

VRC Vocational Rehabilitation Counselor

VRCA Vocational Rehabilitation Counselor Assistant

VR-711 ACCES Form on which Individuals Request Due Process: “Administrative Review / Mediation / Impartial Hearing Request”

W

WC Workers Compensation

WIA Workforce Investment Act

WIB Workforce Investment Boards

WIOA Work Innovation and Opportunity Act

WTO Work Try Out

WOTC Work Opportunity Tax Credit


Section IV

Vouchering Procedures and Forms


VOUCHERING PROCEDURES

Contract Period: July 1, 2014 – June 30, 2019

Quarter 1: July - September Quarter 3: January - March Quarter 2: October - December Quarter 4: April - June

Please submit case paperwork as soon as a case is completed and closed. CDRCs must have all paperwork in for each month by the 10th (tenth) of the following month. 1.) ACCES-VR Case Report – Ensure all information is filled out, including cases for which you only do case

development. Include any problems you encountered. It is important that ACCES-VR know the issues that are being referred. Please completely fill out form. Any missing information may result in payment delays.

2.) Ensure that all participating parties have completed ACCES-VR Mediation Process Questionnaire and returned to NYSDRA.

3.) ACCES-VR Voucher Form – Enter CDRC Name Member Number (Section IV), County and complete boxes as follows

Case Number: Number you assign the case in your system.

Final Disposition Date: Date you closed the case (date of mediation if session held).

Case Development: Number of cases development hours if no mediation held.

Mediated: Check for any case that comes to the mediation table regardless of outcome.

Additional Session: Check for any additional sessions needed in order to complete the mediation. This includes both successfully mediated cases and no agreements.

Conciliated: Check for any case where the CDRS’s intervention has resulted in an agreement without formal mediation. Agreement must be written and signed by the parties.

Amount Due: Fill in as per rates listed below: $400 per mediation $150 each additional session $225 per conciliation $40.00 per hour case development fee - up to 3 hours (no mediation held)

4.) Return completed Case Report, Mediation Process Questionnaires and Voucher Form to:

The New York State Dispute Resolution Association, Inc. Attn: Carla Schlist

4 Pine West Plaza, Suite 411 Albany, NY 12205 Fax: 518-687-2245

E-mail: [email protected] (Email Preferred)



ACCES-VR MEDIATION PROGRAM CASE REPORT

- Send to NYSDRA immediately after final disposition date - Revised 08/12

Case #: ACCES-VR Dist. Office:

Consumer Name (First & Last):

CDRC: County:

Intake Date: Final Disposition Date:

Reason if Case Open for 45+ days:

Issues in Dispute: Applicant eligibility for VR Nature/contents/scope of IPE Quality of counseling services Delivery/quality of other VR services Cost of services Termination of services/service record closure All other complaints and all other issues

Details/Other Issues: ______

Disposition:

Withdrawn Refusal to Mediate Conciliation

Mediation (please choose one of the following):

Agreement Reached No Agreement Reached Partial Agreement

Mediation Session Date(s) - Please list all: ______

Others who attended mediation (check all that apply): Advocate Interpreter Service Provider Family member

Attorney(s) Other (please specify) ______

Mediator(s):

CDRC Program Coordinator: ______


MEDIATION PROCESS QUESTIONNAIRE

Your feedback helps us ensure quality mediation services are consistently provided for New York State citizens.

Thank you in advance for completing this questionnaire.

1. Please check appropriate box describing person completing this form.

ACCES-VR Consumer ACCES-VR Representative Advocate Other: _____________

2. District Office Location: _____________________________________________________________

3. How did you hear about this program?

ACCES-VR/materials Friend/Relative Advocate Attorney CAP

Advertisement/Article Presentation Previous experience

Other: __

4. How did you hear about this program? Yes No

5. Was the process of mediation carried out in a fair and impartial way? Yes No

6. Did you have ample opportunity to express your concerns? Yes No

7. Did you find the mediation process helpful in resolving the issue? Yes No

8. Was communication between consumer and ACCES-VR improved? Yes No

9. Did all parties make an earnest effort to resolve the issue? Yes No

10. Were you accompanied during the mediation by another party? Yes No

11. Under similar circumstances, would you use mediation again? Yes No

12. How would you rate your overall experience with ACCES-VR Mediation?

5 – Excellent 4 – Good 3 – OK 2 – Fair 1 - Poor

13. Please provide any other feedback you think we should have about your experience: ________________________________________________________________________________ ________________________________________________________________________________ ________________________________________________________________________________

Please check this box if you do not want your comments shared


ACCES-VR MEDIATION PROGRAM

VOUCHERING PROCEDURES

Please send the form below to NYSDRA when the case has been closed or at the end of the month with all cases for that month listed. The case report should be sent before, or together with, this voucher form.

Contract Quarter Start Date Contract Quarter End Date Paperwork Due Date

Missed deadlines may result in delayed payment

July 1 September 30 October 10

October 1 December 31 January 10

January 1 March 31 April 10

April 1 June 31 July 10

Rates: $400.00 per mediation

$150.00 per each additional session $225.00 per conciliation (no mediation was held but an agreement reached) $40.00 per hour case development fee - up to 3 hours (no mediation held)

ACCES-VR Mediation Program

Voucher Form

Feel free to add additional rows if necessary Revised 11/12

CDRC Name: CDRC Member #: COUNTY:

Case Number

Final Disposition

Date

Development Only

(List # hours expended) Mediation

Additional Session(s)

Additional Session(s) Conciliation

Amount Due

TOTAL DUE: Authorized Signature Date


CDRC Member Number Listing

CDRC Name CDRC Member

Number

ACCORD, A Center for Dispute Resolution, Inc. ADR005

Center for Dispute Settlement ADR010

Child & Family Services, Inc. – Center for Resolution & Justice ADR015

Common Ground Dispute Resolution, Inc. ADR020

Community Dispute Resolution Center, Inc. ADR021

Community Mediation Services ADR025

Dispute Resolution Center ADR030

Dispute Resolution Center - Chenango, Delaware & Otsego Counties ADR035

Dispute Resolution Center of Herkimer County ADR040

EAC Long Island Dispute Resolution Centers ADR045

IMCR Dispute Resolution Center ADR050

Mediation Center of Dutchess County, Inc. ADR055

Mediation Matters ADR060

New Justice Conflict Resolution Services, Inc. ADR065

New York Center for Interpersonal Development ADR070

New York Peace Institute ADR075

Resolution Center of Jefferson & Lewis Counties, Inc. ADR080

Rural Law Center of New York ADR085

The Peacemaker Program, Inc. ADR095

Dispute Resolution Center of Fulton, Montgomery & Schoharie Counties ADR100

Westchester & Rockland Mediation Centers of CLUSTER, Inc. ADR105


PUT ON CENTER LETTERHEAD Revised 11/15

REMINDER NOTICE

Date: ____________________ TO: Mediation Participant: _____________________________________________________ ACCES-VR Representative: ________________________________________________ CDRC Case #: _______________________ ACCES-VR Case #: _______________________ A Vocational Rehabilitation Mediation has been scheduled as follows: Date: ____________________________ Time: _______________________ Place: __________________________________________________________________ Directions: _______________________________________________________________ We look forward to serving you at the mediation session. If you have any questions or concerns, you may contact me at Center Phone Number. Please bring this notice with you to the mediation. As we discussed on the telephone, we do need to know if you will be bringing anyone with you to the mediation. Thank you very much. c: ACCES-VR QA/Monitoring Unit


PUT ON CENTER LETTERHEAD Revised 11/15

CONCILIATION LETTER

ACCES-VR Mediation Dear Mr./Ms. ______________________ Thank you for using the mediation process to try to resolve the Vocational Rehabilitation situation regarding __________________________. As per our continued discussion and negotiation on the phone, I have typed up a draft record of the conciliated agreement, which is enclosed for your review. Please look over the document and correct, delete, or add to it as appropriate from your recollection of the discussion. If you do have corrections, please send them to me within five (5) business days of receiving the document. If there are no corrections, please affix your signature and return the entire document to my attention at (CDRC Name). Please feel free to contact me if you have any additional questions or concerns. Thank you very much. Sincerely, c: ACCES-VR QA/Monitoring Unit


PUT ON CENTER LETTERHEAD Case # ____________

CONCILIATION AGREEMENT

ACCES-VR Mediation The following represents agreement reached between ________________________ ________________________ and ACCES-VR regarding the issues submitted for mediation:

______________________________ ______________________________ VR Participant Signature ACCES-VR Representative Signature

______________________________ ______________________________

Mediator Signature/Date Mediator Signature/Date


Revised 11/15

PUT ON CENTER LETTERHEAD

MEDIATION PARTICIPATION FORM

ACCES-VR Mediation: ACCES-VR Consumer I, _____________________________________________________________________, the

undersigned do understand that mediation is a voluntary process in which I agree to participate. I

understand that only the ACCES-VR representative and I can reach a resolution, and that the

mediator(s) cannot force any such agreement upon me.

I understand and agree that discussions which occur during the mediation process shall be

CONFIDENTIAL and may not be used as evidence in any subsequent due process hearings or civil

proceedings.

I also understand that my participation in mediation does not deny or delay my right to an impartial

hearing.

Signed: ______________________________________________

Date: _______________________________________________


Revised 11/15


MEDIATION AUTHORIZATION FORM

ACCES-VR Mediation: ACCES-VR Representative I, _____________________________________________________________________, the

undersigned, am authorized by ACCES-VR to serve as its representative in the ACCES-VR

mediation process and to make any and all agreements on behalf of ACCES-VR. I understand that

the individual and I can reach a resolution, and that the mediator(s) cannot force any such agreement

upon me.



proceedings.

I also understand that the individuals’ participation in mediation does not deny or delay the right to an

impartial hearing.

Signed: ______________________________________________

Date: _______________________________________________


Revised 11/15


MEDIATION PARTICIPATION FORM

ACCES-VR Mediation: ACCES-VR Consumer I, _____________________________________________________________________, the

undersigned do understand that mediation is a voluntary process in which I have been requested to

accompany one of the participants.



proceedings. Likewise, any notes or memoranda I take during the process will be destroyed at the

end of the session.

I further understand that I cannot be subpoenaed as a witness to this process.

Signed: ______________________________________________

Date: _______________________________________________


Revised 11/15

PUT ON CENTER LETTERHEAD Case # ____________

MEDIATION AGREEMENT

ACCES-VR Mediation

The following represents agreement reached between __________________________________

and ACCES-VR regarding the issues submitted for mediation:

______________________________ ______________________________

VR Participant Signature ACCES-VR Representative Signature ______________________________ ______________________________ Mediator Signature/Date Mediator Signature/Date


ACCES-VR MEDIATION PROGRAM

FACT SHEET

Mediation is an out-of-court process in which parties meet with a mediator (a neutral third party) to discuss a dispute or problem they have been unable to solve themselves. In other words, mediators help parties to communicate and negotiate. Why should I Mediate?

Convenient – It will be at a time and place convenient to both parties. Timely - The process will be handled more quickly than an impartial hearing or any other court-related

process. Free – Mediation costs are provided at no cost to the consumer. Confidential – Information relayed during mediation if confidential and cannot be used in any other

forum. The only thing that is not confidential is any written agreement, which is immediately incorporated into the consumer’s service plan.

Due Process Rights Preserved - Neither party can be prejudiced in future legal proceedings by attending mediation, so there is everything to gain by trying to resolve the dispute at the earlier stage prior to impartial hearing. If agreement is not reached at mediation, the parties still have the right to an impartial hearing.

Simple – The process is designed so that parties do not need to retain attorneys or advocates to discuss and possibly come to agreement. Attorneys or advocates are welcome at the process to provide support, special education regulation assistance and agreement review, but the consumer and ACCES-VR personnel are the primary parties at mediation.

Increased Communication - Parties have an opportunity to communicate with the assistance of the mediator who is not part of the ACCES-VR “system”.

Increased Understanding of Positions - Parties often walk away from the mediation table with a greater understanding of the other’s perspective, interests and motivations, even if a written agreement is not drafted.

Relationship-Driven – In this program, there is a continuing relationship between consumers and ACCES-VR. Using this process, future issues will be less likely to grow into large-scale problems. Parties learn tools to assist in communicating, and minor disputes are less likely to grow into serious ones.

Voluntary – Either party can request mediation, but using the mediation process must be agreed upon by both parties. This voluntary opting-in to the process ensures both sides are willing to communicate and attempt to resolve the problem in this forum.

Long-Lasting – It has been proven that agreements created and agreed upon by both parties have shown a high satisfaction rate and a high compliance rate.

How does the mediation process work? Either party can request mediation at any time difficulties arise. Mediation is part of the due process continuum (administrative review, mediation, impartial hearing) and can be used in conjunction with any or all other due process procedures. How does a party request mediation? If a consumer agrees to take part in mediation, he/she should fill out form VR-711 and a copy should be forwarded to the mediation center. For information, please contact NYSDRA at 518-687-2240.


CODE OF FEDERAL REGULATIONS

(C) Procedures –

(1) IN GENERAL. – Each State shall establish procedures for mediation of, and procedures for review through an impartial due

process hearing of, determinations made by personnel of the designated State unit that affect the provision o f vocational

rehabilitation services to applicants or eligible individuals.

(2) NOTIFICATION. –

(A) RIGHTS AND ASSISTANCE. – The procedures shall provide that an applicant or an eligible individual or, as

appropriate, the applicant’s representative or individual’s representative shall be notified of –

(i) the right to obtain review of determinations described in paragraph (1) in an impartial due process hearing under

paragraph (5):

(ii) The right to pursue mediation with respect to the determinations under paragraph (4): and

(iii) The availability of assistance from the client assistance program under section 112.

(B) TIMING. – Such notification shall be provided in writing –

(i) at the time an individual applies for vocational rehabilitation services provided under this title:

(ii) at the time the individualized plan for employment for the individual is developed: and

(iii) upon reduction, suspension, or cessation of vocational rehabilitation services for the individual.

(3) EVIDENCE AND REPRESENTATION. – The procedures required under this subsection shall, at an minimum –

(A) provide an opportunity for an applicant or an eligible individual, or, as appropriate, the applicant’s representative or

individual’s representative, to submit at the mediation session or hearing evidence and information to support the

position of the applicant or eligible individual.

(4) MEDIATION –

(A) PROCEDURES. – Each State shall ensure that procedures are established and implemented under this subsection to

allow parties described in paragraph (1) to disputes involving any determination described in paragraph (1) to resolve

such disputes through a mediation process, that, at a minimum, shall be available whenever a hearing is requested

under this subsection.

(B) REQUIREMENTS. – Such procedures shall ensure that the mediation process –

(i) is voluntary on the part of the parties:

(ii) is not used to deny or delay the right of an individual to a hearing under this subsection, or to deny any other right

afforded under this title: and

(iii) is conducted by a qualified and impartial mediator who is trained in effective mediation techniques.

(C) LIST OF MEDIATORS. – The State shall maintain a list of individuals who are qualified mediators and knowledgeable in

laws (including regulations) relating to the provision of vocational rehabilitation services under this title, from which the

mediators described in paragraph (B) shall be selected.

(D) COST. – The State shall bear the cost of the mediation process.

(E) SCHEDULING. – Each session in the mediation process shall be scheduled in a timely manner and shall be held in a

location that is convenient to the parties in the dispute.

(F) AGREEMENT. – An agreement reached by the parties to the dispute in the mediation process shall be set forth in a

written mediation agreement.

(G) CONFIDENTIALITY. – 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. The parties to the mediation process may be

required to sign a confidentiality pledge prior to the commencement of such process.

(H) CONSTRUCTION. – Nothing in this subsection shall be construed to preclude the parties to such a dispute from

informally resolving the dispute prior to proceedings under this paragraph or paragraph (5). If the informal process used

is not used to deny or delay the right of the applicant or eligible individual to a hearing under this subsection or to deny

any other right afforded under this title.



NYSED / ACCES / VR / Adult Vocational Rehabilitation Service Delivery and Coordination / Policies and Procedures / 105.00 Due Process Policy

105.00 Due Process Policy

(April 1, 2003)

See corresponding procedure: 105.00P Due Process Procedure

Table of Contents

Description

Initial Review

Requesting Due Process

Time Limitations

Due Process Options

o Administrative Review

o Mediation

o Impartial Hearing

Selection of the Impartial Hearing Officer

Conduct of the Hearing

Assistance to Individuals During Due Process

Representation During Due Process

Termination of the Review Process Before Its Completion

Default

Status Quo

Reference

Description

An applicant or eligible individual for ACCES-VR services who is dissatisfied with any determination made by ACCES-VR concerning

the provision of services may seek to resolve that dissatisfaction through Administrative Review, Mediation and/or Impartial Hearing.

The objective is to reach a mutually agreeable solution, as quickly as possible, preferably before a formal Impartial Hearing.

ACCES-VR will assist individuals to be active participants in their program and advise them of their rights, the steps of the

Administrative Review, Mediation and Impartial Hearing processes and the availability of assistance from the Client Assistance

Program (CAP) when:

1. an application is made,

2. an ineligibility decision is made,

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3. an individualized plan for employment (IPE) is developed,

4. a potential impasse is reached or services are reduced, suspended or terminated,

5. a case is closed, or

6. the designation of the individual’s priority category if order of selection is in effect.

Initial Review

An Initial Review is a means to resolve problems quickly through a meeting with the senior counselor or other supervisory staff before

resorting to a more formal due process procedure. A person may request an Initial Review verbally or in writing and describe what he or

she is appealing, what happened, when it happened, the people involved and what the individual wants ACCES-VR to do to remedy the

situation. The senior counselor or other supervisory staff should explore why the individual is dissatisfied, explain the reasons for the

contested action or decision, and resolve the problem in a mutually satisfactory way, if possible. The individual should be encouraged to

participate and be completely involved in these discussions.

After the discussion is completed, the senior counselor or other supervisory staff must immediately inform the individual of the decision

and, if the individual does not agree with the decision, should describe again the Administrative Review, Mediation and Impartial

Hearing process and the availability of CAP.

Requesting Due Process

The individual must request a due process review within 90 calendar days after being informed of the action or decision to be reviewed,

unless he or she can show good cause why the review request was made after 90 days. Individuals must be informed about their due

process rights at the time of the dispute as well as completion of any part of due process.

Time Limitations

Time periods for all parts of the review process are computed as calendar days from the first day following the day on which the action

takes place. Time periods can be extended for good cause with the agreement of all parties. All requests for extensions must be made

in writing to the Impartial Hearing Officer.

Due Process Options

The request for due process must be made in writing, signed and dated by the individual or representative.

Administrative Review

The Administrative Review must be scheduled at a time and place which is accessible and allows the individual to participate fully in the

review. The person conducting the Administrative Review should not have been involved in the decisions or actions that resulted in the


Administrative Review. The review must be conducted within 15 days of receipt of the written request. The District Office manager may

decline to schedule an Administrative Review and go directly to Mediation or an Impartial Hearing if the issue will not be resolved at the

District Office level.

The review must include the individual and/or representative, the counselor and other appropriate staff. Within five days of completing

the review, the reviewer will issue a comprehensive, written decision that clearly states:

1. all relevant facts presented at the review,

2. references to appropriate law and policy,

3. conclusions and the basis on which they are made,

4. actions ACCES-VR will take to implement the decision, and

5. the individuals right to Mediation or an Impartial Hearing.

The individual must inform ACCES-VR if he or she accepts the Administrative Review decision within 15 days of receiving the decision.

If the individual agrees with the decision and withdraws the request for due process in writing, the decision is final and ACCES-VR will

begin to implement the Administrative Review decision within 20 days. If there is no agreement by the individual, then Mediation can be

requested or an Impartial Hearing will continue as scheduled.

Mediation

Mediation is an effective, voluntary, alternate means to resolve disputes by reaching a mutually agreeable solution between an

individual and ACCES-VR through the assistance of a trained mediator. The Mediation process can be less formal and adversarial than

an Impartial Hearing. Mediation is not a prerequisite to nor can it delay the Impartial Hearing. If Mediation does not resolve the issue,

the individual must be informed about an Impartial Hearing.

1. Mediation request - The Mediation session will be scheduled as quickly as possible to occur at a site and time accessible to

the parties. ACCES-VR will pay the cost of the Mediation session.

2. Mediator criteria - The Mediation will be conducted by a trained and impartial mediator, knowledgeable in the laws, regulations

and policies relating to the provision of vocational rehabilitation services. The mediator is neutral; not an employee of ACCES-

VR, not currently employed by a vocational program doing business with ACCES-VR, with no personal or financial interest that

would conflict with his or her objectivity.

3. Identifying a mediator - ACCES-VR will maintain a list of qualified mediators and may use the services of appropriate agencies

providing general Mediation services to the community. The district office manager or a designated staff member will represent

ACCES-VR. The representative from ACCES-VR may not agree to a resolution which is contrary to State or Federal law,

regulation or ACCES-VR policy.

4. Mediation Participants - Individuals may bring representatives or family members to Mediation. The Mediation session will

focus only on direct participation from the ACCES-VR representative and the individual receiving ACCES-VR services. All

other parties will participate at the direction of the Mediator unless the individual is unable to participate because of the

disability or communication issues.

5. Mediation Session - Parties may present whatever evidence they wish in support of their position. However, Mediation does

not involve findings of facts or the strict weighing of evidence as an Impartial Hearing. It relies, instead, upon the good faith


efforts of the participants communicating together to reach their own agreement as to how the dispute should be resolved

Although Mediation does not lead to fact finding, Mediation participants should be prepared to describe the factual background

behind the dispute and to discuss their desired outcome. ACCES-VR participants must also be prepared to describe the legal

and policy context around which the dispute arose, as well as the factual details of the situation.

The ACCES-VR representative and the individual should be prepared to discuss and consider each other’s viewpoints and be

willing to cooperate in seeking a resolution acceptable to both. The mediator will facilitate the discussion. The focus is on a

resolution, not which party is right or wrong.

6. Agreement - When reaching an agreement, all parties must have a clear understanding of what each will do in carrying out the

agreement. The mediator will compose the agreement and ask the parties to sign a written Mediation agreement before

leaving the Mediation. The agreement will be implemented within 20 days.

7. Confidentiality - All discussions during the Mediation process are confidential and may not be used as evidence in an Impartial

Hearing or a civil proceeding. The mediator will ask the parties to sign a confidentiality pledge prior to the beginning of the

Mediation session.

Impartial Hearing

An Impartial Hearing is a formal review, and is the highest level of review within ACCES-VR and the State Education Department. An

earlier review is not required before proceeding to an Impartial Hearing.

Selection of the Impartial Hearing Officer

An Impartial Hearing is conducted by a hearing officer who has been trained and approved by ACCES-VR and who:

1. is not an employee of ACCES-VR or any other public agency (other than as an administrative law judge, hearing examiner, or

employee of an institution of higher education);

2. is currently not employed by a vocational program doing business with ACCES-VR;

is not a member of ACCES-VR's State Rehabilitation Council;

3. has not been involved in previous decisions about the vocational rehabilitation of the individual;

4. has knowledge of the delivery of vocational rehabilitation services, the State Plan and Federal and State laws, regulations and

policies about providing services;

5. has received appropriate training about the duties of a hearing officer;

has no personal or financial interest that would conflict with his or her objectivity;

6. was not employed by either ACCES-VR or the Client Assistance Program within the last six years; and

7. has agreed to follow ACCES-VR policies and procedures for Impartial Hearings.

Impartial Hearing officers are assigned by the Deputy Commissioner or his/her designee to hearings on a random basis within the

geographic area they serve. The pool of qualified persons is jointly identified by ACCES-VR and members of the State Rehabilitation

Council. The individual may challenge the assignment of a particular person as the hearing officer in the review if he or she believes

that the hearing officer:

1. not meet the qualifications;


2. will not be objective; or

3. has prior knowledge of or experience in working with the individual or program agency.

An individual who wishes to challenge the appointment of a hearing officer on these grounds should submit the objection in writing, with

evidence to support the allegation, to the Deputy Commissioner no later than 2 weeks prior to the hearing.

Conduct of the Hearing

An Impartial Hearing is a quasi-judicial proceeding conducted under the State Administrative Procedures Act where the proceedings

are recorded by a court stenographer at a neutral location wherever possible. The Impartial Hearing must be scheduled to occur within

60 days of receipt of the written request. The individual must be notified of the hearing at least 14 days before the hearing.

The duties and powers of the Impartial Hearing officer include:

1. defining the issue, receiving and considering all relevant and reliable evidence,

2. ensuring an orderly presentation of the evidence and issues,

3. overseeing the preparation of the record, and reaching a fair, independent and impartial decision based solely on the issues

and evidence presented at the hearing, consistent with relevant laws, regulation and policy.

The hearing officer's decision must be issued no later than 21 days after the completion of the hearing, which is defined as the receipt

of the hearing transcript by the hearing officer. The hearing officer will send copies of the decision to the Deputy Commissioner, the

individual who requested the hearing and any representative who appeared at the hearing on the individual's behalf, as well as to the

District Office manager. The decision will be a comprehensive written statement, which fully describes:

1. the issues raised at the hearing, the hearing officer's findings and the evidence presented at the hearing which supports these

findings (all pertinent laws, regulations and policies),

2. the conclusions of the hearing officer and the bases upon which they are drawn, and

3. specific actions to be taken to implement the hearing officer's decision.

The hearing officer's decision is final and the District Office must begin to implement it within 20 days if the decision requires any action

by ACCES-VR. This is the highest level of review within ACCES-VR’s due process system.

If an individual is dissatisfied with this decision, they should be advised that further recourse would be available to them through civil

action, which will be referenced in the hearing officer's decision.

Assistance to Individuals During Due Process

An interpreter fluent in the individual's dominant language or skilled in communicating with persons who use special modes of

communication will be provided when necessary during any step of the review or Mediation processes. ACCES-VR will also pay the

reasonable costs for:

1. transportation by the least expensive carrier necessary for an individual to attend a review, Mediation or Impartial Hearing

usually only within New York State; ACCES-VR will not reimburse lodging or other incidental expenses for an individual to

attend Mediation, review or hearing, nor any expenses of the individual’s representative;

2. the cost of the Mediation session;


3. the cost of the court stenographer for an Impartial Hearing and hearing officer.

Representation During Due Process

1. All individuals requesting Mediation, a review or hearing will be notified in writing that they have the right to be accompanied

and represented by an authorized representative, such as legal counsel, lay advocate, relative or other spokesperson. The

reviewer, mediator or Impartial Hearing officer can exclude any person whose presence is disruptive to the process. They will

also be informed in writing about the availability of the Client Assistance Program. All expenses of such representation,

including legal fees, are the responsibility of the individual.

2. If an individual elects to be represented by another person at any time during a Mediation, review or hearing, the individual

must inform the District Office in writing. The individual may withdraw authorization for that representative at any time by

informing ACCES-VR staff in writing.


The parties to any part of due process may resolve their disagreement at any time prior to the completion of the review, either with or

without the Mediation process. In order to withdraw a request for a review, the individual or representative must notify the District Office

or hearing officer in writing. The District Office should respond with a letter describing the resolution of the case. Except at an

individual's agreement, a review must not be delayed or canceled because of the possibility of a negotiated agreement.

Default

Failure of the individual or the representative to appear at a scheduled hearing is considered a waiver of the right to that hearing, unless

the individual promptly provides a good reason for not appearing. The hearing officer will decide if the reason offered is good cause for

missing the review or hearing.

Status Quo

Pending the final determination of any part of due process, ACCES-VR will not suspend, reduce or terminate services being provided,

including evaluation and assessment services and plan development, unless the individual agrees or unless such services have been

obtained through misrepresentation, fraud, collusion, or criminal conduct on the part of the individual, or the individual’s representative.

Reference:

Rehabilitation Act:

Section 102(c)(2)


State Law:

State Administrative Procedures Act

ACCES-VR Policies:

100.00 Consumer Involvement Policy

102.00 Confidentiality Policy

Forms:

Preferred form – ACCES-VR Administrative Review/Mediation/Impartial Hearing Request (VR-711)



NYSED / ACCES / VR / Adult Vocational Rehabilitation Service Delivery and Coordination / Policies and Procedures / 105.00P Due Process Procedure

105.00P Due Process Procedure

April 1, 2003

See corresponding policy: 105.00 Due Process Policy

Note: Vocational Rehabilitation procedures provide internal guidance for ACCES-VR staff only and create no procedural

or substantive rights for any individual or group.

Table of Contents

Introduction

Notice of Review

Initial Review

General Information

General Timelines


Levels of Review

o Administrative Review

o Mediation

o Impartial Hearing

Rights of the Individual

o Reasonable Accommodations

o Transportation

o Individual's Representation during the Review Process

o Status Quo

o Postponement

o Copies of the Record of Services

Default

Preparing for a Review

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Introduction

ACCES-VR's due process system is designed to assist individuals who are dissatisfied with any determination made by

ACCES-VR staff concerning the provision of services. It assists them to seek and receive a timely review of the

decision and resolution of any disagreement. Throughout the due process, staff should continue to attempt to reach

resolution with the consumer in the most collaborative and least confrontational manner possible. When an individual

informs ACCES-VR of a disagreement, staff should immediately offer an opportunity for the individual to meet

informally with supervisory staff to discuss the matter and seek a mutually agreeable resolution.

An informal meeting with supervisory staff can be the most expeditious way in which to resolve a disagreement and

should always be explored as the first course of action. If that review is unsuccessful, the individual may continue

through the due process steps of Administrative Review, Mediation and Impartial Hearing. All due process must occur

in an accessible place at a mutually convenient time.

Notice of Review

1. The Client Assistance Program (CAP) brochure will be displayed in each district and satellite office's reception

areas. Individuals will be informed about the availability of due process at orientation. The brochure "What Can I

Do If I Disagree with ACCES-VR's Decisions About My Case..." should be available at orientation, but does not

have to get given out to every consumer.

2. ACCES-VR staff will provide each individual the brochure "What Can I Do If I Disagree with ACCES-VR's Decisions

About My Case" and information about the right to representation and the Client Assistance Program when:

A. a potential impasse occurs, such as

i. the denial of any application or right to apply for agency services;

ii. any action involving a suspension, reduction or termination of service;

iii. disagreements about the scope of service; and

B. an ineligibility decision is made.

3. The individual will be informed about their right to due process, CAP and representation at the following times:

A. at application (documented in Contact or Background Information and Current Impressions case note under

Orientation/Intake, Orientation or Intake headers.)

B. when an Individualized Plan for Employment (IPE) is developed (pre-printed on IPE form),

C. when a case is closed (in closure letter), or

D. when an order of selection is implemented and a priority category has been assigned (if implemented will be

in eligibility letter).

4. The request for any of the due process options must be in writing and SIGNED AND DATED by the individual or

representative. Written requests may be by agency form (VR 711) or any signed and dated letter. Forms that


are unsigned and not dated must be sent back to the individual for signature and date. If the individual cannot

write, the request can be dictated at the district office and witnessed by two ACCES-VR staff members. Signed

and dated requests begin the 60-day time period for an impartial hearing.

5. When requests are received, staff must try to resolve consumer dissatisfaction in the most expeditious and

simple manner possible, while adhering to Federal and State law and ACCES-VR policy. By endeavoring to

resolve consumer dissatisfaction in the most simple manner possible, including discussion with the counselor's

supervisor/manager, staff help assure that issues do not evolve into more confrontational matters.

6. Each office is responsible to notify ACCES-VR’s Quality Assurance Unit of all written requests for Administrative

Reviews, Mediation and Impartial Hearings and their outcomes. Documents should be faxed to (518) 473-7466.

Initial review

1. The individual may request an Initial review verbally or in writing.

A. If the request is verbal, it should be documented in the case record.

B. If the request is in writing, other due process options must be discussed and documented.

2. The Senior Vocational Rehabilitation Counselor or other appropriate supervisory staff will conduct this review. All

parties should be prepared to discuss the issue being appealed; provide a description of what happened; identify

who was involved and what is needed to remedy the situation.

3. The reviewer should become familiar with the case and discuss it with the Vocational Rehabilitation Counselor

and other appropriate staff before the meeting. During this conference, the reviewer should explore why the

individual is dissatisfied; determine the facts of the situation; explain the reasons for the contested action or

decision; and try to resolve the problem in a mutually satisfactory way, if possible.

4. At the end of the discussion, the reviewer must verbally inform the individual of the decision and document it in

a casenote under a due process heading. If the individual does not agree with the decision, the individual must

be informed that they may continue with the Administrative Review, Mediation and Impartial Hearing process

and the availability of CAP. These options should be explained. The results of this conference should be

documented in a case note by the ACCES-VR staff conducting the review.

General Information

All options for due process, which includes Administrative Review, Mediation and Impartial Hearing, must be offered to

an individual. If an Administrative Review is held and the individual disagrees with the outcome, Mediation should be

offered as an option along with an Impartial Hearing. It is possible that the individual will request that all options be

scheduled. It is critical to plan each of the options so they can be scheduled within 60 days of the written request.

If the individual requests for due process options can not be completed within the 60-day time period, the individual

must be informed that this may cause a delay in the date for the Impartial Hearing. If the individual is not willing to


accept a delay for the Impartial Hearing, the district office should contact the Operations and Service Review Units to

discuss next steps including not conducting the Administrative Review or Mediation.

General Timelines

The timelines that are indicated for all parts of the review process are expressed as calendar days. All requests for

review must be within 90 days of the action or decision. The district office should decide if the individual's delay in

requesting the hearing beyond the 90-day limit should be raised as an issue. This may occur when the delay will affect

the district office's ability to present ACCES-VR's position on the primary issue of the review. Reasons may include:

1. A change in the individuals circumstances such as when the individual's condition has worsened and they are no

longer eligible for services; or

2. ACCES-VR staff involved in the decision are not available because of retirement or otherwise leaving ACCES-VR.

If the district office decides the 90-day limit should be an issue, they must inform the Service Review Unit when

they fax the review request to the central office.


1. If resolution is reached before the completion of the review process, the individual or representative must

withdraw the request in writing to the district office. The district office must send a copy of this letter to the

Service Review Unit who will send a letter to the individual closing the hearing request. This does not apply

when an initial review request was made verbally.

2. Except at the individual's request, an Impartial Hearing must not be delayed or canceled because of the

possibility of a negotiated agreement.

Levels of Review

Administrative Review

1. General Information

The request for due process begins the timeframe for Administrative Review, Mediation and the Impartial

Hearing. A copy of the request must be faxed to the Service Review Unit. The Service Review Unit will

immediately start the process of scheduling the Impartial Hearing.

2. Scheduling

A. The review must be scheduled to occur within 15 days of receipt of the request, unless the individual agrees

to a delay. The individual should place the request for a postponement in writing as it will change the

established timeline.


B. The Notice of the Scheduled Review, Form VR-712, must be mailed certified mail with return receipt at least

seven days before the review.

3. Conducting the Administrative Review

A. The District Office Manager or designee should conduct the review. Participants may include the Senior

Vocational Rehabilitation Counselor and Vocational Rehabilitation Counselor, as well as the individual and

representative. To the extent possible, the reviewer should not have been involved in the decisions or

actions that resulted in the review.

B. The District Office Manager or designee may think the Administrative Review is not advisable. If the

Manager decides not to review, the individual and authorized representative must be notified in writing of

the decision and the reasons why there will not be an Administrative Review. Mediation should be made

available as an option.

4. The Decision

A. The reviewer must make a decision and notify the individual and representative within five days after

completing the review using Form VR-713. The decision must be a comprehensive statement containing the

following elements:

i. statement of the issue or issues involved;

ii. a clear and complete statement of facts;

iii. references to all laws, regulations and other legal bases for the decision;

iv. a concise statement of the conclusions drawn; and

v. a clear statement of the actions to be taken.

B. The individual must inform ACCES-VR if he or she accepts or rejects the Administrative Review decision

within 15 days of receiving the decision.

C. If the decision is accepted, implement the recommendation within 20 calendar days. The

Mediation/Impartial-Hearing request is withdrawn by the individual in writing or by signing the VR-713.

D. If the decision is not accepted, there is a statement on the VR-713 that Mediation or the Impartial Hearing

will occur as scheduled unless the individual withdraws the request in writing.

5. A copy of the review decision and the individuals acceptance or denial must also be sent to the Service Review

Unit and the Vocational Rehabilitation Counselor for the record of services.

Mediation

1. ACCES-VR must present Mediation as an option at all points of dispute. ACCES-VR will participate when the

individual selects this option. This does not prevent staff from reviewing the issue and contacting the individual,

if a more expedient means to resolve the dispute becomes apparent. Mediation is not a prerequisite to nor

should it delay the Impartial Hearing process.


2. The district office will provide the individual who has expressed an interest in Mediation with the name, location

and telephone number of the regional Mediation center. This will enable the individual to further explore the

Mediation option directly with the Mediation center.

3. A written request for Mediation is to be treated as a formal request for a hearing. The Impartial Hearing must be

scheduled within 60 days of this written request, unless the individual indicates in writing that he/she will delay

the scheduling of the Impartial Hearing until the completion of Mediation. In these instances, the Impartial

Hearing will be scheduled to occur within 60 days of the conclusion of Mediation efforts.

4. Once the written request has been received by ACCES-VR, the individual should be given the option to initiate

the scheduling of Mediation directly with the center or ACCES-VR staff can contact the local center. The

individual should also be informed that the district office will immediately send the written request to the center,

to be certain that the timelines will be met.

5. The Mediation will take place within the region where the district office is located, although not at the district

office unless needed for security reasons.

6. The district office will provide the name and phone number of the individual who will represent ACCES-VR at

Mediation to the Mediation Center. The ACCES-VR representative should be the Regional Coordinator, District

Office Manager, Assistant Manager, or the Director of Counseling. Should ACCES-VR change the representative,

the regional Mediation center must be notified in advance of the Mediation session.

7. Prior to the Mediation session, the Mediation center will conduct an intake interview with the individual to collect

additional information regarding the issue. The center will ask the district office to provide a description of the

issue, from the agency perspective.

8. The Mediation center will schedule the Mediation to occur at a time and place convenient to all parties, within

two weeks of the intake interview.

9. The discussion that occurs during the Mediation session is confidential and will not be recorded for the record of

services. The discussion that occurred cannot be described or presented as evidence at an Impartial Hearing.

The mediator will ask that all participants sign a Mediation Center’s confidentiality statement at the start of the

session.

10. If the Mediation session concludes satisfactorily, a consent agreement or Mediation agreement will be prepared

by the Mediator and presented to the individual and ACCES-VR for signature immediately at the Mediation. The

consent agreement will be made part of the record of services. The ACCES-VR representative is responsible for

immediately sending a copy of the agreement to the Service Review Unit who will send out letters canceling the

Impartial Hearing.

11. If the Mediation session concludes without a mutually agreeable resolution, the mediator will provide a case

report that will describe the efforts at Mediation without revealing the confidential nature of the discussion. The

report is filed in the case record and a copy faxed to the Quality Assurance Unit.

12. The individual may discontinue the Mediation or retract an agreement reached in Mediation even after signing

the consent agreement. If the individual does retract the agreement and wishes to appeal the initial ACCES-VR


decision to an Impartial Hearing Officer, a new written request descriptive of the issue is required. The written

agreement, but not the Mediation discussion, can be provided as an exhibit and discussed by ACCES-VR in the

presentation of its case to the Impartial Hearing Officer.

13. The individual has the right to have a representative at Mediation. The individual will notify the regional

Mediation center in advance if a representative will be involved. The center will notify the ACCES-VR district

office of this, also in advance of the hearing. The actual Mediation session will be with only the ACCES-VR

representative and the individual, unless the individual needs assistance due to the disability or communications

issues. All other attendees will participate at the direction of the mediator.

14. In the event that an individual fails to appear at a scheduled Mediation, the regional center will contact the

individual to inquire as to the reason and if the individual wishes to reschedule Mediation. If the individual does

wish to proceed with Mediation, the center will inform the district office. The Mediation will be rescheduled if the

individual has a good reason for non-appearance and if it is within the timeline for the Impartial Hearing.

15. There may be extraordinary circumstances in which an effort at Mediation may appear to be futile to the District

Office Manager. In these cases, the District Office Manager must discuss the situation with Manager of the

Service Review Unit in central office and based on a joint decision, may decline to schedule Mediation. An

example of such an extraordinary circumstance is when the individual has shown or threatened violent behavior.

16. If the Manager decides not to participate in Mediation, the Manager must notify the individual and authorized

representative of the decision and the reasons why there will not be Mediation. The decision must be recorded,

either in a case note or in a letter to the individual.

17. In the event of any other unusual circumstance, such as the lack of availability of a Mediator, or the

unwillingness of the Mediation Center to involve itself with a particular case, the District Office Manager or

designee should contact the Quality Assurance Unit to resolve the situation.

Impartial Hearing

1. The Impartial Hearing is the highest level of review within ACCES-VR that may be initiated by an individual and

is the final level of review within the State Education Department. No earlier review needs to be conducted. The

individual can choose to have recourse through civil action if dissatisfied with the outcome of the Impartial

Hearing.

2. The Quality Assurance (QA) Unit will randomly select an Impartial Hearing Officer within 15 calendar days after

receipt of a request for the review. The QA Unit oversees the selection of the Hearing Officer and the hearing

process.

3. An individual who wishes to challenge the appointment of a Hearing Officer must submit a written objection with

written evidence to support the allegation to the QA Unit no later than two weeks before the hearing on the

following:

A. does not meet the qualifications;


B. will not be objective; or

C. has prior knowledge of the individual or experience in working with the program agency.

4. Once the Hearing Officer is appointed, a written notification will be sent from the QA Unit with return receipt at

least 14 days before the hearing to all parties involved. The individual's letter will be sent by certified mail.

ACCES-VR or the individual/representative may request from the Hearing Officer an extension of the time limit

with justification and agreement of all parties.

5. The district office must arrange for the court stenographer and distribution of the transcript upon completion of

the hearing. The district office should check to make sure the court stenographer will attend. The transcript

should be immediately forwarded to the Hearing Officer, with copies to the QA Unit, the individual and

representative.

6. The Hearing Officer's decision must be issued no later than 21 days after the receipt of the hearing transcript by

the Hearing Officer. There are times when the Hearing Officer may extend the completion date so parties on

both sides can submit a brief.

7. The Hearing Officer's decision is final and the district office must begin to implement the decision within 20

calendar days.

Rights of the Individual

Reasonable Accommodations

ACCES-VR will pay the costs for an interpreter fluent in the individual's dominant language or skilled in communicating

with persons with special modes of communication when necessary.

Transportation

ACCES-VR will pay costs for least expensive mode of transportation necessary for an individual to attend an Initial or

Administrative Review, Mediation or Impartial Hearing. Costs will be paid within New York State. The appropriate

mode of transportation and class will be determined by ACCES-VR. ACCES-VR will not reimburse lodging or other

incidental expenses for an individual to attend a review or hearing.

Individual's Representation during the Review Process

1. All individuals requesting Mediation or a review will be notified that they have a right to be accompanied by a

representative. The individual must complete the section of Form VR-711 or they must inform ACCES-VR in

writing if they will have a representative. If the individual wishes to change or withdraw an authorization of a

representative in the review, the individual must inform the district office in writing.


2. Record of Appearance. In accordance with Section 166 of the Executive Law, any individual who represents an

individual for a fee at an Impartial Hearing must complete a Record of Appearance Form (CO-1). The Hearing

Officer must ensure the form is completed, as needed.

Status Quo

1. Any services that are being provided under an IPE must continue until the final decision by the Impartial Hearing

Officer or agreement through Administrative Review, Mediation or a supervisory meeting. This includes ongoing

casework, assessment, plan development and counseling provided by the rehabilitation counselor.

2. If the services were obtained through misrepresentation, fraud, collusion or criminal conduct by the individual,

status quo will not apply.

Postponement

It is not in the interest of ACCES-VR or the individual to postpone a hearing without establishing a new date for a

hearing. This date must be within 60 calendar days unless there is an agreement by all parties to extend the hearing

date.

Copies of the Record of Services

ACCES-VR may provide one copy of a part of the record of services upon request or the case record, if needed by the

individual. Each additional copy will be provided at $.25 per page.

Default

1. Administrative Review

Failure of the individual and/or the individual's representative to appear at a scheduled review is considered a

waiver of the right to that level of review. It does not impact on his/her right to an Impartial Hearing.

2. Impartial Hearing

Failure to appear at a scheduled Impartial Hearing is considered a waiver of the right to a hearing. The

appropriate action for the Impartial Hearing Officer is to find the person in default of the issue of the hearing and

to close the matter for further hearings.

3. Exceptions

If the individual promptly provides the Reviewer or Hearing Officer an appropriate reason for not appearing, the

review or hearing will be rescheduled at the Hearing Officer's instruction.


Preparing for a Review

1. All Reviews

ACCES-VR staff should prepare for a due process proceeding by becoming familiar with the case. This involves

the following steps:

A. Identify the issue(s). Discussions should be held with the Vocational Rehabilitation Counselor, Senior

Vocational Rehabilitation Counselor, and other involved staff about how decisions were reached and to

determine what efforts towards resolution were undertaken, if appropriate.

B. Review the Record of Service. Determine if the record of service supports the decision or action by ACCES-

VR. The Vocational Rehabilitation Counselor and/or Senior Vocational Rehabilitation Counselor should be

asked to identify relevant documentation. Decide what to use as exhibits from the case record, i.e., any

review decisions, relevant IPE's, etc. If the complete record of service is relevant, it should be entered in its

entirety.

C. Review relevant laws, regulations, policies and administrative memos. SED legal counsel is available to

assist in the process. It should be determined how they apply to the decision and issue. Those that are

relevant should be selected to enter as exhibits. Seek advice from District Office Administration on issues

related to interpretation on program and policy decisions.

2. Impartial Hearings

For the Impartial Hearing, the following additional steps should take place. The District Office Manager or

designee should:

A. Prepare a concise case outline as a reference for the hearing. The outline should include relevant dates,

decisions, references to the case record, forms, policies, etc.

B. Decide on legal representation. The ACCES-VR District Manager or designee will usually represent ACCES-VR

at the hearing. However, if an attorney or CAP is representing the individual, the situation should be

discussed with SED's legal counsel to jointly decide on appropriate representation. SED's legal counsel can

also be consulted if the issue is based on unique, legal interpretation rather than a counseling decision.

C. Determine who should testify. This should be a staff member who has been involved in the case. Usually,

this is the Vocational Rehabilitation Counselor, if he/she can effectively present ACCES-VR's case. Depending

on his/her involvement in the decision and issue, the Senior Vocational Rehabilitation Counselor can

reiterate the impact of facts and amplify supervisory input/concerns. The Director of Counseling may be

considered to add expertise in counseling issues and practices. The District Manager or Director of

Counseling can describe policy, regulations, law as applied to the individual's case and the thinking

underlying review decisions. Other experts, if needed, should be considered. It is important to establish

witnesses as experts by having them testify about education and employment history.

D. Prepare the opening statement. Briefly state the issue as ACCES-VR sees it and describe why the decision

was made. Specifics should be held for the presentation.


E. Outline the closing statement. The statement needs to be succinct and persuasive. Restate ACCES-VR's

position. Refer to testimony, laws, regulations, and policies to support the counselor's decision. Indicate that

the Hearing Officer's decision is to be based on the evidence at the hearing, the law and ACCES-VR's written

policy. Point out that the burden of proof is on the individual and argue that they have not met it.

F. Reconsider resolution. When preparing a thorough presentation, questions or concerns may arise regarding

ACCES-VR's position on an issue or documentation to support the decision. The District Office Manager or

designee should discuss the issue with involved staff to determine if another attempt at resolution should be

tried with the individual and/or representative.

Last Updated: February 8, 2012




DISTRICT OFFICES:

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Southern Tier

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New York State Dispute Resolution Association

Contractual Programs Complaint Procedure

I. PURPOSE The New York State Dispute Resolution Association (NYSDRA) administers contracts for the provision of dispute resolution services by the community dispute resolution centers (the centers) in each county of New York State. The centers provide these services through the use of trained mediators and arbitrators (the neutrals).

Quality in these services is a focus of NYSDRA, the centers and the neutrals. When questions concerning quality arise, they need to be resolved in a fair and prompt manner. In modeling our dispute resolution processes, these quality questions also need to be resolved collaboratively whenever possible.

This contractual program complaint procedure is to resolve complaints received by or initiated by NYSDRA. It is also to involve NYSDRA in written contractual program complaints made directly to the centers.

II. STANDARDS A. The Neutrals

The neutrals provide mediation and arbitration services through the centers pursuant to contracts administered by NYSDRA. In providing these dispute resolution services, the neutrals are, at a minimum,

1. To meet the basic requirements to be a neutral as established by NYSDRA and by the center,

2. To maintain their neutrality,

3. To maintain their skills and knowledge by attending required trainings and/or in-services,

4. To follow any procedures required by the statutes and regulations governing these contractual programs,

5. To disclose any known conflicts of interest, either actual or potential, that may require withdrawal as a neutral from a particular case,

6. To arrive promptly for scheduled mediations and arbitrations, and to reschedule any adjourned or continued mediations or arbitrations within any required timelines,

7. To avoid, whenever possible, all exparte contact with the parties in a mediation or arbitration (that is, contact with one party when the other party/parties is/are not present),

8. To prepare any required decisions which, on a regular basis, are clear, complete, definitive and on the correct forms,

9. To submit any required decisions or other paperwork within the required timelines, and,

10. To maintain the integrity of these contractual programs by acting in a competent, professional and ethical manner.


B. The Centers The centers provide mediation and arbitration services pursuant to contracts administered by NYSDRA through their neutrals and their staffs. In providing these dispute resolution services, the centers are, at a minimum,

1. To ensure that their neutrals are following the standards of Section II.A. of this procedure,

2. To have appropriate center staff maintain their skills and knowledge by attending required trainings and/or in-services,

3. To have staff act as neutrals only if doing so will not compromise the integrity of these contractual programs,

4. To follow any procedures required by the statutes and regulations governing these contractual programs, including any required timelines,

5. To submit, within the designated timelines, any paperwork required by NYSDRA, including any payment vouchers and other case concluding reports, and


III. PROCEDURE A. The Neutrals – Complaints to NYSDRA

1. A complaint concerning a neutral in a particular mediation or arbitration pursuant to a NYSDRA administered contract may be made to NYSDRA by a participant in that case and/or by NYSDRA staff (the complainant). As soon as NYSDRA receives the complaint, NYSDRA will notify the center involved in the case by telephone, fax or e-mail.

2. The center will take action using its own quality assurance procedures and will make a written report to NYSDRA within 30 days from NYSDRA’s notification to the center of the complaint. This report will include the nature of the center’s investigation of the complaint, information obtained as a result of the investigation, and any action that the center has taken or will be taking as a result of the investigation. If the neutral, on his/her own or as a result of action by the center, will no longer be active as a neutral in the contractual program which was the subject of the complaint, NYSDRA will take no further action except as set forth in Section III.A.10.

3. If the complaint is not resolved as set forth in the preceding section (Section III.A.2.), the center’s report will by reviewed by a panel of three reviewers. These reviewers will be the following people in the following order: NYSDRA’s executive director, the two co-chairs of NYSDRA’s Contractual Programs Committee (if there are two co-chairs), the chair of NYSDRA’s Contractual Programs Committee (if there is one chair), the vice-chair of NYSDRA’s Contractual Programs Committee, the immediate past president of NYSDRA, and a member or members of


NYSDRA’s Board of Directors as chosen by NYSDRA’s president. If one of the reviewers on the panel is the complainant or is staff member or volunteer with the center involved, s/he will not act as one of the reviewers and instead will be replaced in the order of succession set forth in the preceding sentence. If these NYSDRA reviewers need additional information, a representative of these reviewers will contact the center and request this additional information. Within 10 days from receipt of this request, the center will provide the requested information in writing. This NYSDRA review will be completed as soon as practicable but no later than 15 days from NYSDRA’s receipt of the center’s investigation report or of the center’s submission of requested additional information, whichever is later.

4. If a majority of these NYSDRA reviewers concurs with the resolution proposed by the center, NYSDRA will take no further action except as set forth in Section III.A.10. If a majority of the NYSDRA reviewers does not agree with the center’s proposed resolution, a representative of these NYSDRA reviewers will immediately contact the center to try to resolve this disagreement through negotiation. These discussions will be completed as soon as practicable but no later than 15 days from the completion of the NYSDRA review.

5. If the complaint is still not resolved, NYSDRA will take further action if this complaint is not the first complaint that NYSDRA has received concerning this neutral and/or if the NYSDRA reviewers have concluded that this neutral should be suspended or removed as a neutral for the contractual program. In that circumstance, the NYSDRA reviewers will prepare a written report concerning the complaint, the investigation, and their proposed resolution of the matter. This written report will be prepared within 15 days from the conclusions of the discussions set forth in the preceding section (Section III.A.4.). Within 5 days of the submission of this report, NYSDRA will send a written notice to the complainant, the center and the neutral informing them of the status of the complaint. This notice will include at least the following information: a copy of the written report prepared by the NYSDRA reviewers; specific information concerning when NYSDRA’s Executive Committee will review this matter; the procedure that the complainant, the center and the neutral can follow to submit written explanations and any supporting documentation to the Executive Committee; and the deadline for the submission of those materials which will be at least 15 days from receipt of this written notice. At least 5 days before their meeting, the members of the Executive Committee will be given a copy of the complaint if it was in writing; a copy of the report prepared by the NYSDRA reviewers; and copies of any submissions made by the complainant, the center and/or the neutral. The Executive Committee will meet within 30 days from the date that NYSDRA reviewers submitted their report. No one previously involved in the submission, investigation or review of this complaint will participate in this meeting. Unless there are extenuating circumstances, the Executive Committee will make a decision by the end of the meeting.


6. Within 5 days after this complaint procedure has ended, NYSDRA will inform the complainant in writing of the resolution of the complaint. Within the same time period, NYSDRA will ensure that the neutral and the center are also informed of the resolution. If this resolution is pursuant to the preceding section (Section III.A.5.), this communication to the neutral and the center will be in writing.

7. To the extent possible, confidentiality shall be maintained throughout this procedure.

8. Until any complaint is resolved, the neutral involved will not be assigned to any new cases under the contractual program if s/he so requests, the center so decides, and/or NYSDRA’s executive director so informs the center director in writing. In making this determination, NYSDRA’s executive director will consider the seriousness of the allegations in the complaint and any prior substantiated complaints concerning the neutral.

9. If a complaint is substantiated during this procedure, the resolution of the matter can include any of the following: retraining and mentoring of the neutral, suspension while the neutral is retrained, or removal of the neutral from that contractual program.

10. When this complaint procedure has concluded and as a result the neutral will no longer be active as a neutral in the contractual program which was the subject of the complaint, NYSDRA will notify all other centers that have this neutral on their roster for that contractual program. This notification will include the resolution of the complaint.

B. Written Complaints to the Center

1. When a center receives a written complaint about a NYSDRA administered contractual case, the center will notify NYSDRA. NYSDRA will receive this notification within 2 business days from the center’s receipt of the complaint. The purpose of this notification is to inform NYSDRA, and to seek NYSDRA’s assistance when and/or if it is necessary.

2. Following the receipt of this written complaint, the center will continue to take action using its own quality assurance procedures. The center will have the continued assistance of NYSDRA, if necessary.

3. Within 30 days of its receipt of the written complaint, the center will resolve the complaint and will send a written report concerning that resolution to NYSDRA.

4. If the complaint concerned a neutral and as a result of the resolution of the complaint the neutral will no longer be active as a neutral in the contractual program which was the subject of the complaint, NYSDRA will notify all other centers that have this neutral on their roster for that contractual program. This notification will occur after the resolution of the complaint and will include that resolution.



C. The Centers

1. Except as provided in Section III.C.3., if a center is not meeting a requirement of a NYSDRA administered contractual program, NYSDRA will contact the appropriate center staff to resolve the matter.

2. If those efforts do not resolve the issue, NYSDRA’s executive director will contact the center director to resolve the matter. If appropriate, the initial discussions between NYSDRA and the center will be between NYSDRA’s executive director and the center director. In that circumstance, the procedure set forth in the preceding section (Section III.C.1.) will be combined with this section.

3. Payment for each of the NYSDRA administered contractual programs is made by the timely submission of payment vouchers by the centers to NYSDRA, and then by NYSDRA to the funding sources. The funding sources then pay NYSDRA, and NYSDRA in turn pays the centers. If a center is late in submitting its payment voucher for any of these contractual programs for the fourth quarter of that contractual year, the voucher will not be submitted to the funding source, and the center will receive no payment. The following procedure will apply in each of the other three quarters (the first, second and third quarters) of the contractual year for each of these contractual programs. If a center is late in submitting a voucher for one of these quarters, any payment that NYSDRA receives from the funding source for that voucher will be held by NYSDRA until the end of that contractual year. At that time, NYSDRA will make any appropriate payments to the center.

4. If a center has repeatedly failed to meet the standards required to perform the work of any NYSDRA administered contract and if the procedures set forth in the preceding sections (Sections III.C.1., 2., and 3.) have not resolved the issue, NYSDRA’s executive director will prepare a written report to NYSDRA’s Board for discussion at the next regularly scheduled Board meeting. At least 15 days before the Board meeting, NYSDRA will send to the center a copy of this written report, and information concerning the time and location of the Board meeting. The center can present any information to the Board at that meeting either in person or through a written submission. If the center chooses to make a written submission, it must be sent to the NYSDRA office at least 3 days before the Board meeting. Within 5 days from the Board meeting, NYSDRA will inform the center in writing of the decision of the Board.


PLEASE NOTE: This Contractual Programs Complaint Procedure will be included in any written agreements between NYSDRA and the centers concerning these contractual programs. Adopted by the NYSDRA Board of Directors on February 7, 2000.


New York State Dispute Resolution Association

Contractual Programs Complaint Procedure

Complainant Copy

I. PURPOSE The New York State Dispute Resolution Association (NYSDRA) administers contracts for the provision of dispute resolution services by the community dispute resolution centers (the centers) in each county of New York State. The centers provide these services through the use of trained mediators and arbitrators (the neutrals).

Quality in these services is a focus of NYSDRA, the centers and the neutrals. When questions concerning quality arise, they need to be resolved in a fair and prompt manner. In modeling our dispute resolution processes, these quality questions also need to be resolved collaboratively whenever possible.

This contractual program complaint procedure is to resolve complaints received by or initiated by NYSDRA. It is also to involve NYSDRA in written contractual program complaints made directly to the centers.

II. STANDARDS A. The Neutrals

The neutrals provide mediation and arbitration services through the centers pursuant to contracts administered by NYSDRA. In providing these dispute resolution services, the neutrals are, at a minimum,

1. To meet the basic requirements to be a neutral as established by NYSDRA and by the center,

2. To maintain their neutrality,

3. To maintain their skills and knowledge by attending required trainings and/or in-services,

4. To follow any procedures required by the statutes and regulations governing these contractual programs,

5. To disclose any known conflicts of interest, either actual or potential, that may require withdrawal as a neutral from a particular case,

6. To arrive promptly for scheduled mediations and arbitrations, and to reschedule any adjourned or continued mediations or arbitrations within any required timelines,

7. To avoid, whenever possible, all exparte contact with the parties in a mediation or arbitration (that is, contact with one party when the other party/parties is/are not present),

8. To prepare any required decisions which, on a regular basis, are clear, complete, definitive and on the correct forms,

9. To submit any required decisions or other paperwork within the required timelines, and,



B. The Centers The centers provide mediation and arbitration services pursuant to contracts administered by NYSDRA through their neutrals and their staffs. In providing these dispute resolution services, the centers are, at a minimum,

1. To ensure that their neutrals are following the standards of Section II.A. of this procedure,

2. To have appropriate center staff maintain their skills and knowledge by attending required trainings and/or in-services,

3. To have staff act as neutrals only if doing so will not compromise the integrity of these contractual programs,

4. To follow any procedures required by the statutes and regulations governing these contractual programs, including any required timelines,

5. To submit, within the designated timelines, any paperwork required by NYSDRA, including any payment vouchers and other case concluding reports, and


III. PROCEDURE C. The Neutrals – Complaints to NYSDRA

1. A complaint concerning a neutral in a particular mediation or arbitration pursuant to a NYSDRA administered contract may be made to NYSDRA by a participant in that case and/or by NYSDRA staff (the complainant). As soon as NYSDRA receives the complaint, NYSDRA will notify the center involved in the case by telephone, fax or e-mail.

2. The center will take action using its own quality assurance procedures and will make a written report to NYSDRA within 30 days from NYSDRA’s notification to the center of the complaint. This report will include the nature of the center’s investigation of the complaint, information obtained as a result of the investigation, and any action that the center has taken or will be taking as a result of the investigation. If the neutral, on his/her own or as a result of action by the center, will no longer be active as a neutral in the contractual program which was the subject of the complaint, NYSDRA will take no further action except as set forth in Section III.A.10.

3. If the complaint is not resolved as set forth in the preceding section (Section III.A.2.), the center’s report will by reviewed by a panel of three reviewers. These reviewers will be the following people in the following order: NYSDRA’s executive director, the two co-chairs of NYSDRA’s Contractual Programs Committee (if there are two co-chairs), the chair of NYSDRA’s Contractual Programs Committee (if there is one chair), the vice-chair of NYSDRA’s Contractual Programs Committee, the immediate past president of NYSDRA, and a member or members of

NYSDRA’s Board of Directors as chosen by NYSDRA’s president. If one of the reviewers on the panel is the complainant or is staff member or volunteer with the


center involved, s/he will not act as one of the reviewers and instead will be replaced in the order of succession set forth in the preceding sentence. If these NYSDRA reviewers need additional information, a representative of these reviewers will contact the center and request this additional information. Within 10 days from receipt of this request, the center will provide the requested information in writing. This NYSDRA review will be completed as soon as practicable but no later than 15 days from NYSDRA’s receipt of the center’s investigation report or of the center’s submission of requested additional information, whichever is later.

4. If a majority of these NYSDRA reviewers concurs with the resolution proposed by the center, NYSDRA will take no further action except as set forth in Section III.A.10. If a majority of the NYSDRA reviewers does not agree with the center’s proposed resolution, a representative of these NYSDRA reviewers will immediately contact the center to try to resolve this disagreement through negotiation. These discussions will be completed as soon as practicable but no later than 15 days from the completion of the NYSDRA review.

5. If the complaint is still not resolved, NYSDRA will take further action if this complaint is not the first complaint that NYSDRA has received concerning this neutral and/or if the NYSDRA reviewers have concluded that this neutral should be suspended or removed as a neutral for the contractual program. In that circumstance, the NYSDRA reviewers will prepare a written report concerning the complaint, the investigation, and their proposed resolution of the matter. This written report will be prepared within 15 days from the conclusions of the discussions set forth in the preceding section (Section III.A.4.). Within 5 days of the submission of this report, NYSDRA will send a written notice to the complainant, the center and the neutral informing them of the status of the complaint. This notice will include at least the following information: a copy of the written report prepared by the NYSDRA reviewers; specific information concerning when NYSDRA’s Executive Committee will review this matter; the procedure that the complainant, the center and the neutral can follow to submit written explanations and any supporting documentation to the Executive Committee; and the deadline for the submission of those materials which will be at least 15 days from receipt of this written notice. At least 5 days before their meeting, the members of the Executive Committee will be given a copy of the complaint if it was in writing; a copy of the report prepared by the NYSDRA reviewers; and copies of any submissions made by the complainant, the center and/or the neutral. The Executive Committee will meet within 30 days from the date that NYSDRA reviewers submitted their report. No one previously involved in the submission, investigation or review of this complaint will participate in this meeting. Unless there are extenuating circumstances, the Executive Committee will make a decision by the end of the meeting.

6. Within 5 days after this complaint procedure has ended, NYSDRA will inform the complainant in writing of the resolution of the complaint. Within the same time period, NYSDRA will ensure that the neutral and the center are also informed of the resolution. If this resolution is pursuant to the preceding section (Section III.A.5.), this communication to the neutral and the center will be in writing.



8. Until any complaint is resolved, the neutral involved will not be assigned to any new cases under the contractual program if s/he so requests, the center so decides, and/or NYSDRA’s executive director so informs the center director in writing. In making this determination, NYSDRA’s executive director will consider the seriousness of the allegations in the complaint and any prior substantiated complaints concerning the neutral.

9. If a complaint is substantiated during this procedure, the resolution of the matter can include any of the following: retraining and mentoring of the neutral, suspension while the neutral is retrained, or removal of the neutral from that contractual program.

10. When this complaint procedure has concluded and as a result the neutral will no longer be active as a neutral in the contractual program which was the subject of the complaint, NYSDRA will notify all other centers that have this neutral on their roster for that contractual program. This notification will include the resolution of the complaint.

D. Written Complaints to the Center

1. When a center receives a written complaint about a NYSDRA administered contractual case, the center will notify NYSDRA. NYSDRA will receive this notification within 2 business days from the center’s receipt of the complaint. The purpose of this notification is to inform NYSDRA, and to seek NYSDRA’s assistance when and/or if it is necessary.

2. Following the receipt of this written complaint, the center will continue to take action using its own quality assurance procedures. The center will have the continued assistance of NYSDRA, if necessary.

3. Within 30 days of its receipt of the written complaint, the center will resolve the complaint and will send a written report concerning that resolution to NYSDRA.

4. If the complaint concerned a neutral and as a result of the resolution of the complaint the neutral will no longer be active as a neutral in the contractual program which was the subject of the complaint, NYSDRA will notify all other centers that have this neutral on their roster for that contractual program. This notification will occur after the resolution of the complaint and will include that resolution.


PLEASE NOTE: This Contractual Programs Complaint Procedure does not prevent a participant in a mediation or arbitration from seeking legal options.

Adopted by the NYSDRA Board of Directors on February 7, 2000.