STATE OF MICHIGAN
MICHIGAN ADMINISTRATIVE HEARING SYSTEM
IN THE MATTER OF: Docket No.: 14-024489-DHS
Petitioner
v
Michigan Rehabilitation Services, Respondent
/
Case No.: 29.14
Agency: Department of
Human Services Case Type: MRS-Appeal Filing Type: Appeal
Issued and entered
this 16th day of December, 2014 by: Steven Kibit
Administrative Law Judge DECISION AND ORDER
This matter commenced with the filing of a Request for Hearing on September 25, 2014, with the Michigan Administrative Hearing System (MAHS). Attached to the Request for Hearing was a letter from Petitioner in which he stated that he wished to appeal a decision by Respondent Michigan Rehabilitation Services (MRS) to deny him assistance in acquiring a hearing aid.
Following the receipt of the Request for Hearing, MAHS scheduled, with due notice, a telephone pre-hearing conference for November 12, 2014, and an in-person hearing for November 20, 2014.
The telephone pre-hearing conference was held as scheduled on November 12, 2014. During that conference, the undersigned Administrative Law Judge and the parties confirmed that the sole issue in this matter is whether MRS was proper in denying Petitioner’s request for assistance in acquiring a specific type of hearing aid.
The November 20, 2014 hearing also proceeded as scheduled. The hearing was held under the authority of the Rehabilitation Act of 1973, as amended, 29 USC 722 et seq., and Act 232 of the Public Acts of 1964, MCL 395.81 et seq. , an advocate from , represented Petitioner. Ruth O’Connor, Hearings Coordinator, represented Respondent.
During the hearing, each party offered two exhibits that were admitted into the record: Petitioner’s Exhibit 1: Letter from Jaclyn Sommerville, Au.D.,
dated October 29, 2014
Petitioner’s Exhibit 2: Respondent’s Exhibit A: Respondent’s Exhibit B:
Email from Thelma Clark, dated August 13, 2013
Audiology Referral Form signed June 17, 2014
Individualized Plan for Employment (IPE) signed July 2, 2014
The following witness testified on behalf of Petitioner:
1. , Petitioner.
The following three witnesses testified on behalf of Respondent:
1. Mr. Karston Bekemeier, Policy Consultant for MRS.
2. Mr. Alvin Brewer, Rehabilitation Counselor
3. Ms. Thelma Clark, Site Manager for the Detroit Grand River MRS Office
ISSUE
Did MRS properly deny Petitioner’s request for assistance in purchasing a one year subscription toward a Lyric hearing aid?
FINDINGS OF FACT
The Administrative Law Judge, based upon the competent, material and substantial evidence on the whole record, finds as material fact:
1. Petitioner is a MRS client who has been diagnosed with a hearing disability. (Testimony of Petitioner).
2. In the past, Petitioner received funds from MRS to be used toward the purchase of a Lyric hearing aid subscription. (Testimony of Petitioner; Testimony of Clark).
3. Petitioner paid the remainder of the cost for the subscription. (Testimony of Petitioner).
4. Petitioner’s IPE at the time also reflected the understanding that Petitioner would work on budgeting and, if he was able, he would purchase any future hearing aids. (Testimony of Petitioner; Testimony of Clark).
5. As Petitioner’s hearing aid expired and his subscription ended, he and his new rehabilitation counselor, Alvin Brewer, began discussing the purchase of a new hearing aid. (Testimony of Petitioner; Testimony of Brewer).
6. During those discussions, Brewer requested that Petitioner be evaluated by an audiologist. (Testimony of Petitioner; Testimony of Brewer).
7. Brewer also provided a list of audiologists. Petitioner picked one, and an evaluation was completed. (Testimony of Petitioner).
8. On June 17, 2014, the audiologist signed a completed Audiology Referral Form. (Respondent’s Exhibit A, pages 1-5).
9. In that form, the audiologist described how Petitioner’s hearing loss limits Petitioner’s ability to conduct training or job functions as follows: “Patient can’t interact at work with co-workers. is [sic] a hazard to himself & others while working. (Respondent’s Exhibit A, page 1).
10. The form also included the audiologist’s written recommendation for a hearing aid. (Respondent’s Exhibit A, page 1).
11. Specifically, the audiologist recommended a Starkey Sound Lens Invisible-in-the-Canal (IIC) hearing aid, noting that it was very powerful and would allow Petitioner to hear clearly in noisy situations. (Respondent’s Exhibit A, page 1).
12. The audiologist further noted that the warranty period for the recommended hearing aid was three years and that it would cost
$3,000.00 total for both ears. (Respondent’s Exhibit A, page 2).
13. In the alternative, the audiologist also noted that there is another hearing aid that would be suitable for employment purposes at less cost, a Phonak Completely in the Canal (CIC) hearing aid for $2,800.00. (Respondent’s Exhibit A, page 2).
14. Petitioner and Brewer later reviewed the audiologist’s report and developed an IPE. (Testimony of Petitioner; Testimony of Brewer).
15. In that IPE, the first planned service identified was: Medical Treatment/ Physical Restoration
Customer must maintain medical treatment and uses [sic] hearing aids as prescribed by Audiologist. The Michigan Rehabilitation Services (MRS) contribution to the purchase of hearing aids is limited to that which meets the functional vocational rehabilitation needs of the
individual at least cost to MRS. Customer reports he would not be able to contribute toward purchase of hearing aids due to unexpected expense. Per Audiology Referral Form, completed Sterling Hearing Center in Livonia, MI. [sic] Customer does have profound hearing lose [sic] in his left ear (82-100%) and severe hearing lose [sic] in his right ear (52- 82%). Per Audiologist ‘Patient can’t interact at work with co-workers, is a hazard to himself and others while working.” Also the customer will able [sic] to interact with customer and future employees. The written recommendation for hearing aid[.]
Respondent’s Exhibit B, page 1
16. The IPE also specifically identified the approved hearing aid as a Starkey Sound Lens IIC, while also noting that the warranty period was for three years and the estimated planned service cost was $3,000.00. (Respondent’s Exhibit B, page 2).
17. The IPE also identified a Phonak CIC hearing aid, for $2,800.00, as another option. (Respondent’s Exhibit B, page 2).
18. On July 2, 2014, Petitioner and his rehabilitation counselor both signed the IPE. (Respondent’s Exhibit B, page 6).
19. However, while the IPE only identified a Starkey Sound Lens IIC hearing aid and a Phonek CIC hearing aid, Petitioner subsequently purchased a one year subscription to a Lyric hearing aid on July 20, 2014 for
$3,600.00. (Testimony of Petitioner).
20. Petitioner then sought $3,000.00 from MRS to go toward the purchase of that one year subscription. (Testimony of Petitioner; Testimony of Brewer).
21. However, MRS denied Petitioner’s request for retroactive assistance in purchasing the subscription. (Testimony of Petitioner; Testimony of Brewer; Testimony of Clark).
CONCLUSIONS OF LAW
The purpose of Title I of the Rehabilitation Act of 1973, as amended, 29 USC 720 et seq, is to provide for "a comprehensive, coordinated, effective, efficient, and accountable program of vocational rehabilitation which is an integral part of a statewide workforce investment system, and designed to assess, plan, develop, and provide vocational rehabilitation services for individuals with disabilities, consistent with their
strengths, resources, priorities, concerns, abilities, and capabilities, interests and informed choice, so that such individuals may prepare for and engage in gainful employment."
Applicants are eligible for Agency services if they have a physical or mental impairment that constitutes or results in a substantial impediment to employment and if they require Agency services to prepare for, secure, retain or regain employment consistent with their abilities and capabilities. See MRS Policy 3100.
Once an eligibility determination has been made, a vocational needs assessment is conducted to determine the goals, nature and scope of rehabilitation services to be included in the Individualized Plan for Employment (IPE), see MRS Policy 5000 and the types of services that can be provided as part of an IPE is broad:
The services counselors can provide, arrange or purchase for an individual with a disability are those services related to an individualized plan for employment necessary to assist the individual in preparing for, securing, retaining, or regaining an employment outcome in an integrated setting that is consistent with the individual's strengths, resources, priorities, concerns, abilities, capabilities, interests, and informed choice.
MRS Policy 6000, page 1 of 3
However, with respect to rates of payment for any services, MRS Policy 9025 also states in the pertinent part:
The maximum rate of payment for services shall be the usual, customary and reasonable (UCR) rate charged for the service not to exceed that charged other public agencies. The service that will meet the individual’s vocational rehabilitation need at the least cost to Michigan Rehabilitation Services (MRS) shall be the service purchased. MRS shall not place an absolute and arbitrary dollar limit on specific service categories or on the total services provided to the individual.
* * *
When an individual chooses a service or service provider whose cost is higher than another service or service provider that will also meet the individual’s vocational rehabilitation need, the counselor is not required to pay the higher cost because it is the individual’s choice. Individuals have the right to choose a higher cost service or service provider. One
of the disadvantages of that choice is that MRS payment will not exceed that of the lower cost service or service provider that also meets the individual’s vocational rehabilitation need. The individual or other resources are responsible for the difference.
MRS Policy 9025, page 1
Moreover, regarding the retroactive authorization of services, MRS Policy 9175 provides:
Policy:
Retroactive authorizations are prohibited.
Procedure:
A retroactive authorization is one that is issued after services have been initiated or received. Since this is prohibited by federal regulations, a retroactive authorization constitutes an audit exception that could result in the forfeiture of Michigan Rehabilitation Services (MRS) funds unless prior written or verbal approval was given to the provider. A retroactive authorization may be issued only when oversight or other unavoidable circumstances prevented the authorization from being issued in a timely manner. Retroactively issued authorizations must be accompanied by a case note that documents the reason why the authorization was retroactive, and steps to be taken to correct the recurrence of such an audit exception.
Site Manager approval and signature on retroactive authorizations is required. [Emphasis added]
The monetary dispute in this case relates to the Petitioner’s request for assistance in purchasing a hearing aid and, with respect to hearing aids, MRS Policy 6225 provides in part:
Policy:
Hearing aids may be authorized or arranged when part of an IPE or as part of extended assessment.
Procedure:
· Before a hearing aid is authorized, the case record shall document how hearing aid(s) are essential to the individual’s extended assessment/trial work experiences, job preparation or employment, and that the specific hearing aid(s) are required by the individual to carry out work or training functions.
* * *
· Client contribution to the purchase of hearing aids, consistent with the individual’s ability to contribute, shall be discussed with the client, strongly encouraged, and the results documented in the case record.
· The counselor and client shall identify a savings plan as a part of the IPE to ensure that the customer will be able to provide for the maintenance of the hearing aid(s) and future replacement of the same.
· The Michigan Rehabilitation Services (MRS) contribution to the purchase of hearing aids and services is limited to that which meets the functional vocational rehabilitation needs of the individual at least cost to MRS. The customer has the opportunity to select more costly or cosmetically desirable hearing aids, but is responsible for the difference in cost.
* * *
Audiologist Referral:
Clear communication with the audiologist about the client’s communication needs will assist in the proper selection of hearing aid(s). The counselor should ensure that the audiologist understands the vocational focus of the MRS referral for hearing aid services. Questions to be asked of the audiologist by the counselor should include:
• How will a hearing aid(s) improve this person’s work place functioning?
• What type of hearing aid and options, if any, are necessary to improve the person’s hearing for employment functions?
• What alternative hearing aid selection at a lesser cost would be suitable for this individual considering the individual’s work or training needs?
• Would additional assistive listening technology be needed to enable adequate work function?
Clients should be encouraged to work closely with the hearing aid provider to assure proper use, fitting and adjustment in order to obtain optimum use from the aids.
* * *
Vocational Necessity:
The counselor has the responsibility to determine the vocational necessity of hearing aids based on information provided by the audiologist, the client, and, as needed, through a job or training site assessment. The counselor should clearly understand the client’s job duties and work related communication requirements before determining that a hearing aid is necessary. A written statement from an employer may be used if it is detailed enough to establish the above.
Establishing the vocational necessity of a specific hearing aid is achieved after discussion with the client and recommendations of the audiologist. The focus should be on what is needed to facilitate performance of the client’s essential job functions and job-related communication requirements. Documentation of vocational necessity should be evident in the case record.
* * *
Types of Hearing Aids:
Style of hearing aid refers to where the hearing aid is worn in relation to the ear. Style of hearing aid may be a personal or cosmetic decision but may also be linked to functional aspects of the hearing aid.