H.C.R. NO.


















     WHEREAS, vocational rehabilitation is a critical aspect of Hawaii's workers' compensation system and vital to the system's overriding objectives of adequately compensating the injured worker and restoring the worker as fully as possible to that level of economic earnings and as quickly as is possible to gainful employment if the worker becomes disabled; and


     WHEREAS, vocational rehabilitation has historically been a successful and valued part of the State's commitment to the restoration process, which assists the individual worker, the employer, and the community as a whole; and


     WHEREAS, statistical evidence gathered by vocational rehabilitation professionals attests to the continuing success of vocational rehabilitation as a means of returning injured workers to the workforce; and


     WHEREAS, statistical evidence demonstrates that in 2015, an average 59.6% of injured workers returned to work through a vocational rehabilitation plan while in 2016, the average rose to 65.4%; and


     WHEREAS, many responsible individuals and stakeholders in the existing workers' compensation system have voiced legitimate concerns that the program is currently administered in a different manner than in the previous three and a half decades, and that is contrary to the original intent of the system as expressed in section 386-25(a), Hawaii Revised Statutes; and


     WHEREAS, criticism has been voiced that, in one case, the mutual agreement between the parties to send an injured worker to San Bernadino, California, for heavy equipment training was prudent and economical because no such training was offered in Hawaii and doing so would return the injured worker to gainful employment in an expeditious manner; however, the Vocational Rehabilitation Unit rejected the agreement as well as the supportive decision of the Department of Labor and Industrial Relations' hearing officer and chief hearings officer; accordingly, the worker found it necessary to appeal her case to the Labor and Industrial Relations Appeals Board, which then approved a settlement that reinstated the mutually agreed upon training; and


     WHEREAS, the Vocational Rehabilitation Unit's recent denials of initial evaluation reports that are not submitted within the normal forty-five day period have led to the arbitrary closures of otherwise viable vocational rehabilitation cases, with the option of further referral to other counselors, even though failures to comply with the forty-five day limit are due to factors beyond the counselors' control, such as the need to secure medical information from physicians about the injured workers' physical or psychological limitations and requests by physicians to conduct functional capacity testing before providing the medical information on physical limitations; and


     WHEREAS, such further referral is duplicative and costly and undertaken without rational basis, is unnecessarily expensive for employers and insurance carriers, and disruptive to sound relationships that claimants have formed with their original vocational counselors; and


     WHEREAS, criticism has also been voiced that the Vocational Rehabilitation Unit is currently administered in a manner that is punitive and retaliatory toward counselors who are advised of the department's authority to revoke their certification or registration under section 12-14-19, Hawaii Administrative Rules; and


     WHEREAS, the unwarranted references to section 12-14-19, Hawaii Administrative Rules, is intimidating, hostile, and contrary to the cooperative relationships that should be fostered within the Vocational Rehabilitation Unit and the professionals that it regulates, and may even represent, in some cases, retaliation against the vocational counselors' exercise of their First Amendment constitutional rights to participate in the legislative and regulatory process by petitioning their government and the Department of Labor and Industrial Relations for statutory and regulatory changes, as well as their exercise of independent professional judgment as licensed professionals, and their advocacy for appropriate vocational rehabilitation plans on the part of clients they represent; and


     WHEREAS, no vocational rehabilitation counselor should have to suffer any detriment or retaliation as the result of the counselor's lawful exercise of the counselor's First Amendment rights to participate in the legislative process or to engage in discussions and debates regarding the adoption of administrative rules, because such detriment or retaliation is antithetical to the essential traditions of American democratic government; now, therefore,


     BE IT RESOLVED by the House of Representatives of the Twenty-ninth Legislature of the State of Hawaii, Regular Session of 2017, the Senate concurring, that the Auditor is requested to audit the performance, during calendar years 2015 and 2016, of the Vocational Rehabilitation Unit of the Disability Compensation Division of the Department of Labor and Industrial Relations; and


     BE IT FURTHER RESOLVED that the Auditor is requested to include in the audit, assessments of whether the Vocational Rehabilitation Unit;


(1)  Has data on the success and efficacy of the vocational rehabilitation efforts of the providers that it regulates;


(2)  Has any sufficient and statistically valid data to reach meaningful conclusions about the efficacy of the providers that it regulates;

(3)  Engages in a practice of closing vocational rehabilitation cases, because of noncompliance with the forty-five day deadline for submitting initial evaluations, and then permitting the cases to be assigned to other counselors; provided that the Auditor is requested to determine whether the practice:


(A)  Is a recurring one;


(B)  Results in an unnecessary delay of vocational rehabilitation services;


(C)  Results in the termination of vocational services; and


(D)  Is noticed by employers, insurance carriers, injured workers, injured worker advocates and counsel, and the vocational rehabilitation counselors;


(4)  Treats counselors who have lawfully advocated changes in legislation and administrative rules in an adverse and discriminatory manner.  The Legislature requests that this evaluation be conducted by first identifying counselors who opposed the Department of Labor and Industrial Relations' attempt to establish alternative methods of compensating counselors based upon the Department's criteria of vocational success; and


(5)  Deliberately misclassifies the success or failure of vocational rehabilitation plans in order to further the Department's previous but now abandoned goal of establishing a new system of compensation; and


     BE IT FURTHER RESOLVED that the Auditor is requested to submit a report of any findings and recommendations, including any proposed legislation, to the Legislature not later than twenty days prior to the convening of the Regular Session of 2018; and

     BE IT FURTHER RESOLVED that certified copies of this Concurrent Resolution be transmitted to the Auditor and the Director of Labor and Industrial Relations.









Report Title: 

State Auditor