Rule-Making Standards and Procedures s6

Title of Proposed Rule: / Vocational Rehabilitation Services Re-Write of General Program Rules and Business Enterprise Program (BEP); and, Deletion of Standards for Handicap Parking
Rule-making#: / 06-11-28-1
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 and Business Enterprise Program (BEP) as authorized under the Randolph-Sheppard Act. The rule changes are necessary to reflect federal regulatory changes over the years and to provide a basis for DVR and BEP 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. Also, the handicap parking rules are being deleted because parking privileges for persons with disabilities are found in Title 42 "Vehicles and Traffic" (Sections 42-3-204 and 42-4-1208, C.R.S.).

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”;

(continued)

Initial Review / 03/07/2008 / Final Adoption / 04/04/2008
Proposed Effective Date / 06/01/2008 / EMERGENCY Adoption / n/a

DOCUMENT 1

STATEMENT OF BASIS AND PURPOSE (continued)

34 CFR 395.1 – definitions; 34 CFR 395.4 - regarding state rules and regulations, “the state licensing agency shall promulgate rules and regulations which have been approved by the secretary and which shall be adequate to assure the effective conduct of the state’s vending facility program (including state licensing agency procedures covering the conduct of full evidentiary hearings) and the operation of each vending facility in accordance with this part and with the requirements and conditions of each department, agency, and instrumentality in control of the maintenance, operation, and protection of federal property, including the conditions contained in permits, as well as in all applicable federal and state laws, local ordinances and regulations.”

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: In the general Vocational Rehabilitation program rules:

Section 9.101.3 references Section 101(a)(7) of the Rehabilitation Act, as amended in 1992;

Section 9.102.3 references 34 CFR 361.49;

Section 9.109.1 references the Standards Manual for Organizations Serving People with Disabilities (CARF).

In the Business Enterprise Program, Section 9.413.4 references Section 5(a) of the Randolph-Sheppard Act and 34 CFR 396.13(a).

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; National Association of Blind Merchants; American Council of the

Blind of Colorado, Inc.; Colorado Cross Disability Coalition; United Cerebral Palsy Association of Colorado;

Brain Injury Association of Colorado; Business Enterprise Program licensees and current trainees; State of Colorado Legislative Audit Division; CDHS Division of Accounting

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 requirement’s for general vocational rehabilitation services, individuals who are blind and found eligible to become licensed BEP operators, 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, individuals who are blind and found eligible to become licensed BEP operators will benefit from the increased clarity of program processes, organizational structure and financial accountability descriptions, all of which contribute to the individual’s ability to successfully become self-sufficient. Finally, 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. In addition, there are approximately thirty (30) individuals who are blind working as operators in the Business Enterprise Program.

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

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

REGULATORY ANALYSIS (continued)

Federal Fiscal Impact

None

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

None

4. Data Description:

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

None - all changes were based on federal laws and regulations

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 / No vision listed / States Division vision and shows updated 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 / __ / Yes / X / 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" / __ / Yes / X / No
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

OVERVIEW OF PROPOSED RULE (continued)

Section Numbers / Current Regulation / Proposed Change /

Stakeholder Comment

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 / __ / Yes / X / 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 / __ / 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
9.110 (formerly 9.109) / Case closure / __ / 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

OVERVIEW OF PROPOSED RULE (continued)

Section Numbers / Current Regulation / Proposed Change /

Stakeholder Comment

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
9.400.1 / States purpose of BEP program / Updates and clarifies purpose of program / __ / Yes / X / No
9.400.2 / Lists program definitions / Updates definitions to bring them in line with regulatory language and adds definitions for the following terms: debt, individual location, active participation, cafeteria & management services / __ / Yes / X / No
9.401 / Lists eligibility criteria / Expands eligibility criteria to include requirements for food handling, U.S. Department of Labor and Employment, access for operating locations on state and federal properties and minimum educational standards / __ / Yes / X / No
9.402 / Describes licensure of operators / This section has been redeveloped to more clearly define the manner in which an operator can obtain licensure and criteria for terminating licensure / __ / Yes / X / No
9.404 (formerly 9.403.3) / Covers the responsibilities of state licensing agency / Adds timeframe for Blind Committee notification of agency’s position as well as enumerates responsibilities as listed in federal regulation / __ / Yes / X / No

OVERVIEW OF PROPOSED RULE (continued)

Section Numbers / Current Regulation / Proposed Change /

Stakeholder Comment

9.405 (formerly 9.404) / Describes set-aside fund, use, and operator responsibility to pay / Additional language added for clarification, simplified negotiated schedule, updated uses for set-aside funds, also to conform with current accounting schedules / __ / Yes / X / No
9.407 (formerly 9.405 / Describes distribution of vending machine income / Updates section / __ / Yes / X / No
9.408 / New / Refers to policy and procedures / __ / Yes / X / No
9.409 (formerly 9.406) / Lists agreements and benefits to blind operators / Further details operator agreement / __ / Yes / X / No
9.406 (formerly 9.407) / Access to program financial information / Adds operator responsibility for financial reporting, expands on agency responsibility / __ / Yes / X / No
9.410 (formerly 9.408) / Operator indebtedness to the program / Adds language referring to Colorado Administrative Accounts Receivable Rule 1.37, states course of action regarding delinquent operators, and brings program into compliance with Colorado Fiscal Rules for receivables / __ / Yes / X / No
9.411 (formerly 9.409) / Overview of State licensing agency furnishing equipment, supplies, and initial inventory for a location / Defines authorization of repairs, adds inventory element, and designates blind subcommittee participation / __ / Yes / X / No
9.412 (formerly 9.410) / Describes training program requirement / Further describes training program / __ / Yes / X / No
9.413 (formerly 9.411) / Details reviews and hearing procedures for dissatisfied operators / Updates section / __ / Yes / X / No
9.414 (formerly 9.412) / Confidentiality statement / Includes HIPAA language / __ / Yes / X / No
9.900 / Standards for handicapped parking privileges / Deletes this section as the Division no longer administers the program /