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395.53, R 395.54, R 395.76, and R 395.79  of the Michigan Administrative Code are amended, and R 395.65 and R 395.83 is rescinded, as follows: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.