Rule-Making Standards and Procedures s13

Title of Proposed Rule: / Vocational Rehabilitation Services Re-Write of General Program Rules
Rule-making#: / 08-5-30-1
Program: Division of Vocational Rehabilitation (DVR) / Rule Author: Krista Dann and Ken Schmidt / Phone: 303-866-4618

STATEMENT OF BASIS AND PURPOSE

Summary of the basis and purpose for the rule or rule change. (State what the rule says or does, explain why the rule or rule change is necessary and what the program hopes to accomplish through this rule.)

These rules implement statutory requirements and provide organizational structure under which the Colorado Department of Human Services, Division of Vocational Rehabilitation (DVR), administers the federally required and funded public vocational rehabilitation program. The rule changes are necessary to reflect federal regulatory changes over the years and to provide a basis for DVR to establish policy and procedures for staff and consumers. These rules will provide the opportunity for DVR to more effectively administer the program for which it has responsibility.

An emergency rule-making (which waives the initial APA noticing requirements) is necessary:

to comply with state/federal law and/or
to preserve of the public health, safety and welfare

Explain:

Authority for Rule:

State Board Authority: 26-1-107, C.R.S. (2007) - State Board to promulgate rules; 26-1-109, C.R.S. (2007) - State Board rules to coordinate with federal programs; 26-1-111, C.R.S. (2007)- State Board to promulgate rules for public assistance and welfare activities

Program Authority: (give federal and/or state cite and a summary of the language authorizing the rule-making)

26-8-101, C.R.S. (2007), et seq. - administration of the program under the department of human services;

26-8-104(1)(a), C.R.S. (2007) - requires the state department to ”make rules and regulations governing personnel standards, the protection of records and confidential information, the manner and form of filing applications, eligibility, the investigation and determination of eligibility for vocational rehabilitation services, procedures for fair hearings, the establishment and operation of rehabilitation facilities and workshops, and such other rules and regulations as may be necessary to carry out the purposes of this article”.

Initial Review / 09/05/2008 / Final Adoption / 10/03/2008
Proposed Effective Date / 12/01/2008 / EMERGENCY Adoption / n/a

DOCUMENT 6

STATEMENT OF BASIS AND PURPOSE (continued)

X / Yes / No
Yes / X / No

Does the rule incorporate material by reference?

Does this rule repeat language found in statute?

If yes, please explain:

Section 9.102.3 references 34 CFR 361.49 and Section 9.109.1 references the Standards Manual for Organizations Serving People with Disabilities (CARF).

State Board Administration will send this rule-making package to CCI, OSPB and the JBC. The program has sent this rule-packet to which stakeholders?

State Rehabilitation Council; Statewide Independent Living Council; ARC; Atlantis Community, Inc.;

Center for Disabilities; Center for Independence; Center for People with Disabilities; Colorado Springs

Independence Center; Connections for Independent Living; Disability Center for Independent Living;

Disabled Resource Services; Independent Life Center; Southwest Center for Independence; Goodwill;

the Legal Center for People with Disabilities and Older People (Client Assistance Program); National Federation

of the Blind; Colorado Center for the Blind; American Council of the Blind of Colorado, Inc.; Colorado Cross Disability Coalition; United Cerebral Palsy Association of Colorado; Brain Injury Association of Colorado; individuals with disabilities served by DVR (made available through DVR’s website and field office)

Attachments:

Regulatory Analysis

Overview of Proposed Rule

Stakeholder Comment Summary

Rule-making Form SBA-3a (9/05)

REGULATORY ANALYSIS

(complete each question; answers may take more than the space provided)

1. List of groups impacted by this rule:

Which groups of persons will benefit, bear the burdens or be adversely impacted by this rule?

Benefit: Individuals with disabilities residing in the State of Colorado who meet eligibility requirements for general vocational rehabilitation services and DVR agency staff.

Bear the Burdens: None

Adversely Impacted: None

2. Describe the qualitative and quantitative impact:

How will this rule-making impact those groups listed above? How many people will be impacted? What are the short-term and long-term consequences of this rule?

Individuals with disabilities residing in the state of Colorado who meet eligibility requirements for general vocational rehabilitation services will benefit from the increased clarity and reflection of federal regulations that have changed. These regulation changes result in more expeditious determinations of eligibility, more comprehensive vocational plans and a longer period of job stability prior to case closure. In addition, agency staff will be better able to provide a high quality of coordinated and effective services based on increased understanding of program parameters.

DVR serves approximately 20,000 individuals with disabilities annually.

3. Fiscal Impact:

For each of the categories listed below explain the distribution of dollars; please identify the costs, revenues, matches or any changes in the distribution of funds even if such change has a total zero effect for any entity that falls within the category. If this rule-making requires one of the categories listed below to devote resources without receiving additional funding, please explain why the rule-making is required and what consultation has occurred with those who will need to devote resources.

State Fiscal Impact (Identify all state agencies with a fiscal impact, including any CBMS change request costs required to implement this rule change)

None

County Fiscal Impact

None

Federal Fiscal Impact

None

Other Fiscal Impact (such as providers, local governments, etc.)

None

Rule-making Form SBA-3b (6/02)

REGULATORY ANALYSIS (continued)

4. Data Description:

List and explain any data, such as studies, federal announcements, or questionnaires, you relied upon when developing this rule?

None

5. Alternatives to this Rule-making:

Describe any alternatives that were seriously considered. Are there any less costly or less intrusive ways to accomplish the purpose(s) of this rule? Explain why the program chose this rule-making rather than taking no action or using one of the listed alternatives.

No alternatives were considered because the rule is required by state or federal law or federal regulations, and no discretion was permitted by the law or regulation.

Rule-making Form SBA-3b (6/02)

OVERVIEW OF PROPOSED RULE

Compare and/or contrast the content of the current regulation and the proposed change.

Section Numbers / Current Regulation / Proposed Change /

Stakeholder Comment

9.101.1 / Shows Department of Social Services as "state agency" / Changes to Department of Human Services / __ / Yes / X / No
9.101.2 / Previous mission / Shows updated Division mission / __ / Yes / X / No
9.101.3 / New / Adds section on personnel standards to reflect federal regulations; re-numbers subsequent sub-sections / __ / Yes / X / No
9.101.4 (formerly 9.101.3) / Non-discrimination statement / Incorporates gender in non-discrimination statement; adds information about legal presence / __ / Yes / X / No
9.101.5 / Record of services / Formerly definitions section which have not changed and are now incorporated into eligibility criteria; deletes former 9.101.4 and adds maintenance of record of services / __ / Yes / X / No
9.102 / Protection, use, release of personal information / Revises section / _X_ / Yes / _ / No
9.103.1 / Describes only informal and formal appeals with 45 day requirement for holding a formal hearing with an impartial hearing officer / Federal regulations changed to a 60 day requirement for formal hearing and added remedies of civil action and mediation to process. Also changed "impartial hearing officer" to "state administrative law judge" and wrote procedures in accordance with the Administrative Procedures Act / _X_ / Yes / __ / No

OVERVIEW OF PROPOSED RULE (continued)

Section Numbers / Current Regulation / Proposed Change /

Stakeholder Comment

9.103.2 / Refers to IWRP / Changes IWRP to IPE in accordance with federal regulation and adds DVR decision to reduce, suspend or terminate planned services and goods / __ / Yes / X / No
9.104.1-9.104.3 / Covers eligibility determination as organized in previous regulation / Reorganizes topics to mirror current regulations / __ / Yes / X / No
9.104.4 / Severity of disability / Moved to 9.105.5 / __ / Yes / X / No
9.105.1-9.105.5 / Order of selection / Organizes information to reflect current regulations and reduces category classifications from six to three per federal regulation / __ / Yes / X / No
9.106 / Determining employment and service needs / Describes process for determining employment outcome and service needs per federal regulation (section numbering changed again by addition of this section) / __ / Yes / X / No
9.107 (formerly 9.106) / Describes IWRP development and process / Changes IWRP to Individualized Plan for Employment and describes development process per current federal regulation / _X_ / Yes / _ / No
9.108 (formerly 9.107) / Describes process for providing VR services / Reorganizes for clarity / __ / Yes / X / No
9.109 (formerly 9.108) / Utilization of rehabilitation funds / Changes numbers / __ / Yes / X / No
9.109.2 / Describes consumer financial participation / Adds statement that SSI/SSDI recipients are exempt from financial participation per federal regulation / __ / Yes / X / No

OVERVIEW OF PROPOSED RULE (continued)

Section Numbers / Current Regulation / Proposed Change /

Stakeholder Comment

9.110 (formerly 9.109) / Case closure / Changes numbers / __ / Yes / X / No
9.110.2 / Specifies sixty days of continuous employment as closure criteria and describes no-competitive closures / Changes 60 day requirement to 90 days and removes language about non-competitive closures per current federal regulations / __ / Yes / X / No
9.110.3 / Describes other reasons for closure and stipulates “failure to cooperate” notification to SSA / Clarifies reasons for closure and eliminates SSA notification in accordance with current federal regulations / __ / Yes / X / No

STAKEHOLDER COMMENT SUMMARY

The following individuals and/or entities were contacted and informed that this rule-making was proposed:

∙ State Rehabilitation Council

∙ Statewide Independent Living Council

∙ ARC

∙ Atlantis Community, Inc.

∙ Center for Disabilities

∙ Center for Independence

∙ Center for People with Disabilities

∙ Colorado Springs Independence Center

∙ Connections for Independent Living

∙ Disability Center for Independent Living

∙ Disabled Resource Services

∙ Independent Life Center

∙ Southwest Center for Independence

∙ Goodwill

∙ The Legal Center for People with Disabilities and Older People (Client Assistance Program)

∙ National Federation of the Blind

∙ Colorado Center for the Blind

∙ American Council of the Blind of Colorado, Inc.

∙ Colorado Cross Disability Coalition

∙ United Cerebral Palsy Association of Colorado

∙ Brain Injury Association of Colorado

Comments were received from stakeholders on the proposed rule-making:

X / Yes / No

STAKEHOLDER COMMENT SUMMARY (continued)

If “yes”, please summarize and/or attach the feedback you received; provide proof of agreement or ongoing issues with a letter or public testimony by the stakeholder.

9.103.1 - One individual asked for clarification regarding the informal dispute resolution process and the changes to the formal appeal process. Response pointed out that new Administrative Procedure Act (APA) language includes ability to negotiate a resolution at the lowest possible level. Further clarification was give regarding the change from impartial hearing officers to administrative law judges. Minor language changes were made to clarify the continued existence of an informal dispute resolution process.

9.103.1 - A representative from the Client Assistance Program indicated that DVR in past state plans has specified that the state has first burden of proof with regards to appeals. Agency response indicated that there are no federal laws or regulations addressing burden of proof, so we must follow the Administrative Procedures Act which specifies burden of proof as belonging to “the proponent of an order”. Guidance from the attorney general’s office has clarified that “burden of proof” refers to the individual’s responsibility to articulate his/her disagreement with a decision and, in fact, is to the benefit of the individual as it gives them “rebuttal” rights during a formal appeal proceeding.

9.102.2 – A representative from the Client Assistance Program indicated that there was a discrepancy between rules statements about the handling of information deemed potentially harmful to an individual and the federal regulations. Language in this section was modified to be in compliance with the federal regulations.

9.107 - Feedback received from the Client Assistance Program indicated concern that the rules do not outline a specific time limit relating to the development of the Individualized Plan for Employment. Agency response is that this is in keeping with the federal regulations which state that a plan must be developed “in a timely manner”.

Rule-making Form SBA-3d (6/02)

12 CCR 2513-1

REHABILITATION SERVICES

(12 CCR 2513-1)

TABLE OF CONTENTS

9.100 VOCATIONAL REHABILITATION PROGRAM

9.101 Legal and Operational Basis

9.102 Protection, Use, and Release of Personal Information

9.103 Rights to Review and RIGHT OF Appeal AND FORMAL APPEAL PROCESS

9.104 Eligibility

9.105 Order of Selection

9.106 DETERMINING EMPLOYMENT OUTCOME AND SERVICE NEEDS

9.107 9.106 Individualized Written Rehabilitation Program PLAN FOR EMPLOYMENT (IPE)

9.108 9.107 Provision of Vocational Rehabilitation Services

9.109 9.108 Utilization of Rehabilitation Funds

9.110 9.109 Case Closure

12 CCR 2513-1

VOCATIONAL REHABILITATION PROGRAM 9.101 - 9.101.3

9.100 VOCATIONAL REHABILITATION PROGRAM

9.101 LEGAL AND OPERATIONAL BASIS

9.101.1 State Agency Designation

Rev. eff. The Department of Social HUMAN Services is the sole State Agency in Colorado

9/1/93 designated to administer the State Plan. All decisions affecting eligibility for, the nature and scope, and the provision of available vocational rehabilitation and supported employment services are made by the designated State Unit, DIVISION OF VOCATIONAL Rehabilitation (DVR) Services , and are not delegated to any other agency or person.