DEPARTMENT OF LABOR AND ECONOMIC OPPORTUNITY
MICHIGAN REHABILITATION SERVICES
VOCATIONAL REHABILITATION
Filed with the secretary of state on
These rules become effective immediately after filing with the secretary of state unless adopted under section 33, 44, or 45a(9) of the administrative procedures act of 1969, 1969 PA 306, MCL 24.233, 24.244, or 24.245a. Rules adopted under these sections become effective 7 days after filing with the secretary of state.
By authority conferred upon the director
of the department of health and human services by 1964 PA 232 and
Executive Reorganization Order Nos.1993-11, 1999-1, 2003-1, 2012-10, and
2015-4, MCL 395.81, 408.40, and 445.2011 and in accord with the Rehabilitation
Act Amendments of 1998, P.L. 105-220.
(By authority conferred on the director of the department of labor and economic opportunity by sections 2a and 2b of the proprietary schools act, 1943 PA 148, MCL 395.102a and 395.102b, and sections 3, 4, and 6 of the rehabilitation act of 1964, 1964 PA 232, MCL 395.83, 395.84, and 395.86; Executive Reorganization Order Nos. 1999-1, 2003-1, 2012-5, and 2019-3, MCL 408.40, 445.2011, 445.2033, and 125.1998; and in accord with the workforce innovation and opportunity act , Public Law 113-128)
R 395.51, R 395.53, R 395.54, R 395.76, and R 395.79 of the Michigan Administrative Code are amended, and R 395.65 and R 395.83 is rescinded, as follows:
PART 1. ELIGIBILITY FOR REHABILITATION SERVICE
R 395.51 Definitions.
Rule 1. As used in these rules:
(a) “Clear and convincing evidence” means there is a high degree of certainty that the individual is incapable of benefiting from services in terms of an employment outcome.
(b) The “Client
Assistance Program” or the “CAP” means the mandated program authorized
under the rehabilitation act of 1973, 29 U.S.C. USC 70132. which
provides individual and systemic advocacy services to all MRS applicants and eligible
individuals including additional information, problem resolution assistance,
and assistance with an appeal. The CAP provides assistance in informing
and advising all applicants and individuals eligible for vocational
rehabilitation services of all available benefits under the rehabilitation act
of 1973, 29 USC 701 to 7961. Upon request of such
applicants or eligible individuals, the CAP assists and advocates for such
applicants or eligible individuals in their relationships with projects,
programs, and services provided under the rehabilitation act of 1973, 29 USC
701 to 7961, including assistance and advocacy in pursuing legal,
administrative, or other appropriate remedies to ensure the protection of the
rights of such individuals under the rehabilitation act of 1973, 29 USC 701 to
7961 and to facilitate access to the services funded under the rehabilitation act
of 1973, 29 USC 701 to 7961 through individual and systemic advocacy.
(c) “Comparable services and benefits” means services and benefits, not including awards and scholarships based on merit, that are provided or paid for, in whole, or in part, by other federal, state, or local public agencies, by health insurance, or by employee benefits that are available to the individual at the time needed to ensure the progress of the individual toward achieving the employment outcome in the individual’s IPE and that are commensurate to the services the individual would otherwise receive from MRS.
(c) (d) “Competitive
integrated employment” means work that complies with the following:
(i) Is performed on a full-time or part-time basis, including self-employment, and for which an individual is compensated at a rate that includes all of the following:
(A) Is not less
than the higher of the rate specified in section 6(a)(1) of the Fair Labor
Standards Act fair
labor standards act
of 1938, 29 U.S.C. USC 206(a)(1) 206 or the rate
required under the applicable state or local minimum wage law for the place of
employment.
(B) Is not less than the customary rate paid by the employer for the same or similar work performed by other employees who are not individuals with disabilities and who are similarly situated in similar occupations by the same employer and who have similar training, experience, and skills.
(C) In the case of an individual who is self-employed, yields an income that is comparable to the income received by other individuals who are not individuals with disabilities and who are self-employed in similar occupations or on similar tasks and who have similar training, experience, and skills.
(D) Is eligible for the level of benefits provided to other employees.
(ii) Is at a
location where the employee with a disability interacts for the purpose of
performing the duties of the position with other individuals persons,
for example, other employees, customers and
vendors, who are not individuals with disabilities, not including
supervisory personnel or individuals who are providing services to such
employee, to the same extent that employees who are not individuals with
disabilities and who are in comparable positions interact with these
individuals.
This requirement does not include supervisory personnel or individuals who
are providing services to such employee to the same extent that employees who
are not individuals with disabilities and who are in comparable positions
interact with other persons.
(iii) Presents, as appropriate, opportunities for advancement that are similar to those for other employees who are not individuals with disabilities and who have similar positions.
(d) “Comparable
services and benefits” means services and benefits, not including awards and
scholarships based on merit, that are provided or paid for, in whole, or in
part, by other federal, state, or local public agencies, by health insurance,
or by employee benefits that are available to the individual that the
individual would otherwise receive from the designated state vocational
rehabilitation agency.
(e) “Cost of attendance” means the total amount it will cost a student to attend school in a year.
(f) “Employment
outcome” means,
with respect to the individual, entering, advancing in, or retaining
full-time employment, or, if appropriate, part-time competitive integrated employment, including
customized employment, self-employment, telecommuting, or business ownership, in the
integrated labor market, or supported employment, or any other type
of employment in an integrated setting, including self-employment,
telecommuting, or business ownership, that is consistent with an
individual’s strengths, resources, priorities, concerns, abilities,
capabilities, interests, and informed choice.
(g)
“Individualized plan for employment” or “IPE” means an individualized plan for
employment as described in R 395.67 to R 395.71. a written
document prepared on a form approved by MRS and developed to afford the
individual meaningful opportunity to exercise informed choice in the selection
of the following:
(i) Employment
goal.
(ii) Specific
vocational rehabilitation services required to achieve the employment goal.
(iii) Entities that
will provide services.
(iv) Methods of
service provision.
(h) “Job in
jeopardy” means an individual who is in danger of being terminated from his or
her the individual's job due to disability-related factors.
(i) (h) “Michigan
Rehabilitation Services or “MRS” means the part of a network of vocational
rehabilitation programs across the United States authorized by the federal
rehabilitation act of 1973, 29 USC 701 to 7961as amended, PL
105-220.
(j) (i) “Part-time employment”
means employment that is permanently assigned to an employee that is less than
30 hours of work per week.
(j) “Post-employment services” means one or more vocational rehabilitation services that are provided subsequent to the achievement of an employment outcome and that are necessary for an individual to maintain, regain, or advance in employment, consistent with the individual’s unique strengths, resources, priorities, concerns, abilities, capabilities, interests, and informed choice.”
(k) “Pre-employment transition services” or “Pre-ETS” means the required activities and authorized activities specified in 34 CFR 361.48(a)(2) and (3).
(k) (l) “Rehabilitation
technology” means the systematic application of technologies, engineering
methodologies, or scientific principles to meet the needs of and address the
barriers confronted by individuals with disabilities.
(l) “Seasonal
employment” means employment as defined by the United States department of
labor to be less than 5 months duration and is linked to seasonal or climatic
conditions.
(m) “Substantial
impediment to employment” means that a physical or mental impairment,
that materially hinders an individual from preparing for, entering into, engaging in, advancing in, or retaining
employment consistent with the individual’s abilities and capabilities.
(n) “Substantial
services” means services that are provided in the context of a counseling
relationship and the individual’s informed choice, and that make a significant
contribution to the individual’s employment outcome. Substantial services may
be provided directly, purchased, or arranged.
(o) “Temporary
employment” means employment for 180 days or less.
(p) “Underemployment”
means employment in which there is a significant discrepancy between the
individual's demonstrated abilities and capabilities and the demands of the
current job.
(q) “Unsteady
employment” means employment that is seasonal, intermittent, temporary,
permanently part-time, or subjects the individual to a pattern of layoffs or
variations in the availability of work.
(r) (n) “Vocational
rehabilitation services” or “VRS” means those services, if provided to
an individual, listed in 34 CFR 361.48, and, if provided for the benefit of
groups of individuals, those services listed in 34 CFR 361.49. available to
assist the individual with a disability in preparing for, securing, retaining,
or regaining an employment outcome that is consistent with the individual’s
strengths, resources, priorities, concerns, abilities, capabilities, interests,
and informed choice. Services provided shall be published policy and be made
available to the public.
R 395.53 Purpose.
Rule 3. (1) MRS
shall assist assess,
plan, develop, and
provide
vocational rehabilitation services for eligible individuals with physical or
mental disabilities, consistent with their unique strengths, resources,
priorities, concerns, abilities, capabilities, interests, and informed choice, to prepare for
and engage
in competitive integrated employment and achieve economic
self-sufficiency
an employment outcome.
(2) MRS shall make available Pre-ETS statewide to all students with disabilities, regardless of whether the student has applied or been determined eligible for vocational rehabilitation services.
(3) MRS shall engage with employers to increase job opportunities for individuals with disabilities.
(2) (4) The MRS
process is based upon on an Individualized
Plan for Employment (IPE) which that is oriented to an individual’s achievement
of a vocational goal.
MRS
provides services in accordance with the provisions of an IPE. Each IPE must be
designed to achieve a specific employment outcome that is selected by the
customer consistent with the customer’s unique strengths, resources,
priorities, concerns, abilities, capabilities, interests, and informed choice.
Each IPE must include a description of the specific vocational rehabilitation
services needed to achieve the employment outcome. Services provided
must be essential needed to overcome the vocational impediment
achieve
the customer’s employment outcome and must be provided at the least cost, and be of
sufficient quality,
to meet the individual’s rehabilitation needs.
R 395.54 General requirements.
Rule 4. (1) MRS
shall not discriminate on the basis of race, religion, age, national origin,
color, height, weight, marital status, sex, sexual orientation, gender identity
or expression, political beliefs, or disability., participant
status in a workforce innovation and opportunity act-funded program, or
discriminate against certain non-citizens as defined by section 188 of the workforce
innovation and opportunity act, 29 USC 3248.
(2) MRS shall
not impose,
as
part of determining an individual’s eligibility for vocational rehabilitation
services, a
duration of residence requirement as part of determining an individual’s
eligibility for vocational rehabilitation services or that excludes from
services under the IPE any individual applicant who is legally
present in this state.
(3) Throughout
the individual’s rehabilitation program, every opportunity must shall be
provided to the individual to make informed choices regarding the
rehabilitation process. MRS shall maintain documentation of opportunities for
making informed choices in the individual’s case record.
(4) MRS shall
establish and maintain a case record for each individual and recipient of
vocational rehabilitation services, which includes data necessary to comply
with MRS and federal rehabilitation services administration Rehabilitation Services
Administration
requirements.
(5) MRS shall make administrative decisions about the district and office boundaries in which individuals are served. Individuals do not have a right to select the office or district in which they are served or the counselor who will serve them.
(6) Individuals
are served in geographic MRS districts and offices according to their
residence. Individuals who change their permanent residence may have
the option to have their cases transferred, with supervisory approval, to the
district or office to which they have moved.
(7) Individuals have the right to appeal the denial of a request to change counselors within an office.
(8) Case service
expenditures, whether assessment or IPE services, require written authorization
by MRS prior to before or simultaneously with the initiation of
the service. Retroactive authorizations are prohibited. Retroactive
authorizations are allowed if the MRS customer made reasonable efforts to
ensure MRS was able to provide the service and failure to authorize payment for
services is due to MRS error or delay.
(9) Goods and
services must shall be
provided subject to the statewide availability of funds. Goods and services
shall be explored by the individual, with assistance from the MRS counselor,
and the individual may be involved in the choice of who will provide goods and
services. Each
IPE must be developed and implemented in a manner that gives the individual the
opportunity to exercise informed choice in selecting the vocational
rehabilitation services needed to achieve the employment outcome, including the
settings in which services will be provided, and the entity or entities that
will provide the vocational rehabilitation services.
(10) When
appropriate, MRS counselors shall provide the referral necessary to
support the
individuals
with disabilities in securing needed services from other agencies and
organizations.
(11) The MRS
counselor shall inform each individual of the right to obtain review procedure for
requesting a review or redetermination of determinations made by MRS that
affect the provision of vocational rehabilitation services, including the right
to pursue mediation,. of an agency decision with which he or she the
individual disagrees, including how the individual may request a hearing and provide applicants
and eligible individuals with notice of the availability of the CAP to assist the
applicant or recipient during mediation sessions or impartial due process
hearings.
R 395.65 Rescinded
Rule 15. (1) An
individual with a disability who is employed may be eligible
for MRS services
if, as a result of his or her disability, his or her employment does any of
the following:
(a) Endangers
the health and safety of the individual or others.
(b) Is in
jeopardy.
(c) Is unsteady.
(d) Results in
significant underemployment and needed services cannot be obtained
from other
agencies or resources.
(2) An
individual who has access to resources from other agencies, but chooses not
to use them, is
generally not considered to require MRS services. The individual must
meet all
eligibility criteria to be determined eligible for MRS services.
(3) A job may be
considered in jeopardy if the disability substantially hinders an
individual's job
retention, or an individual has confirmation of a restructuring of his or
her position
which, due to his or her disability, he or she would no longer be able to do,
and requires VRS
to retrain for a new position.
(4) When
considering whether an individual requires job retention services, the
MRS counselor
shall seek objective verification, such as a statement from the current
employer, a job
analysis, or medical verification of a significant decline in functional
capacity related
to job function.
(5) Routine
maintenance or replacement of personal medical or adaptive supplies
and equipment are
the responsibility of the employed individual and generally are not
sufficient grounds
for a finding of eligibility for MRS services.
R 395.76 Rates of payment.
Rule 26. (1) The
maximum rate of payment for services shall be the usual, customary and
reasonable rate charged for the service not to exceed the rate charged by other
public agencies. MRS shall maintain a fee schedule for select vocational
rehabilitation services. The fee schedule is a complete list of established
rates of payment used to authorize and pay for specified services.
(2) The MRS fee schedule for vocational rehabilitation services is not absolute and MRS shall allow exceptions to the fee schedule so that individual needs can be addressed. The MRS fee schedule for vocational rehabilitation services must not be so low as to effectively deny an individual a necessary service.
(2) The
service that will meet the individual’s vocational rehabilitation need at (3) MRS shall
authorize for services not listed on the fee schedule at the least cost to
MRS shall be the service purchased that will ensure sufficient quality
of services to meet the individual’s vocational rehabilitation need.
(3) (4) MRS shall not
place an absolute dollar limit on specific service categories or on the total
services provided to the an individual.
(4) (5) MRS is not
responsible for the cost of out-of-state services in excess of the cost of
in-state services if either service would meet the individual’s vocational
rehabilitation needs.
R 395.79 Rehabilitated
case closure. Requirements
for closing the record of services of an individual who has achieved an
employment outcome.
Rule 29. A The record of
services of an
individual is determined to have who has achieved an employment outcome may be closed only if all of the following
requirements are met:
(a) The
employment outcome is in an integrated setting. The individual has
achieved the employment outcome that is described in the individual’s IPE.
(b) Substantial
services under an IPE are provided and have contributed to the employment
outcome.
(c) (b) The employment
outcome is consistent with the individual's unique strengths,
resources, priorities, concerns, abilities, capabilities, interests, and
informed choice.
(d) (c) Employment
reflects The
individual has maintained the employment outcome described in the IPE or IPE
amendment and has been maintained for an appropriate period of time, but
not less than
at least 90 days, necessary to ensure the stability of the employment
outcome, and the individual no longer needs vocational rehabilitation services.
(e) (d) The individual
and MRS counselor consider the employment to be satisfactory and agree the
individual is performing well on the job.
(e) The individual is informed through appropriate modes of communication of the availability of post-employment services.
(f) At the
time of closure there is an assessment of the need for post-employment
services.
R 395.83 Rescinded.
Rule 33. (1) The MRS counselor shall
conduct an assessment of the need for post-employment services prior to
rehabilitated closure. An individual whose case have been closed rehabilitated
shall be provided additional services if necessary to maintain, regain, or
advance in his or her current employment.
(2) The need for post-employment
services may arise either from an unexpected situation or be planned as part of
the IPE or at case closure. An individual shall be encouraged to stay in touch
with his or her MRS counselor following case closure to seek assistance if
problems arise and employment is in jeopardy.
(3) Post-employment services are
provided as an amendment to the IPE and generally are provided within
approximately 12 months of case closure. In determining whether it is
appropriate to provide a needed service in post-employment status, the MRS
counselor shall determine whether the service or services are related to the
original IPE and, therefore, is an appropriate amendment to it.
(4) Post-employment services shall be
used to assist an individual in maintaining employment when a job is in
jeopardy, or to regain employment when a new placement is needed due to job
loss.
(5) The MRS counselor may provide
services in post-employment status to assist an individual in advancing in his
or her present career if extended training is not involved, and if the MRS
counselor determines that the current job is no longer consistent with the
individual's strengths, resources, priorities, concerns, abilities,
capabilities, and interests. Objective, performance-based data shall be
obtained to assist the MRS counselor and individual in making this
determination.
(6) The MRS counselor shall record in
the case record changes in the individual's work situation such as employer
name, wages, or hours worked.