PAYMENT OF MAINTENANCE FUNDS TO VOCATIONAL REHABILITATION (VR) CUSTOMERS
DISCUSSION PAPER
Background
Maintenance is a type of financial support that can be paid directly to an individual that has applied for and or is receiving vocational rehabilitation services. For the purpose of this discussion, maintenance does not include transportation funds that are paid directly to the consumer.
29 USCA §723(a)(7) defines vocational rehabilitation services as “any services described in an individualized plan for employment necessary to assist an individual with a disability in preparing for, securing, retaining, or regaining an employment outcome that is consistent with the strengths, resources, priorities, concerns, abilities, capabilities, interests, and informed choice of the individual, including—(7)maintenance for additional costs incurred while participating in an assessment for determining eligibility and vocational rehabilitation needs or while receiving services under an individualized plan for employment…”
Section 361.5(34) of 34 CFR defines “maintenance” as: “maintenance means monetary support provided to an individual for expenses, such as food, shelter, and clothing, that are in excess of the normal expenses of the individual and that are necessitated by the individual's participation in an assessment for determining eligibility and vocational rehabilitation needs or the individual's receipt of vocational rehabilitation services under an individualized plan for employment.” The section goes on to provide a few illustrative examples of expenses that would meet the definition of maintenance, but indicates that the examples are not intended to substitute for individual counselor judgment:
Example 1: The cost of a uniform or other suitable clothing that is required for an individual's job placement or job-seeking activities.
Example 2: The cost of short-term shelter that is required in order for an individual to participate in assessment activities or vocational training at a site that is not within commuting distance of an individual's home.
Example 3: The initial one-time costs, such as a security deposit or charges for the initiation of utilities that are required in order for an individual to relocate for a job placement.”
State law defines maintenance as: “money payments not exceeding the estimated cost of subsistence during vocational rehabilitation…” [Texas Labor Code §352.001(4)].
As reflected in Texas Workforce Commission (TWC) rules, [formerly rules of Department of Assistive and Rehabilitative Services (DARS)], at 40 Texas Administrative Code (T.A.C.)§856.46:“DRS may pay maintenance to the consumer. Maintenance is a payment to the consumer made during any stage of the rehabilitation process to cover basic living expenses, such as food, shelter, clothing, and other subsistence expenses that are in excess of the normal expenses of the consumer, and are necessary for the consumer to derive the full benefit of other vocational rehabilitation services.”
Issue
The TWC Vocational Rehabilitation divisions, in accordance with 34 CFR 361.48, offer maintenance as one of the services that is available to VR customers where it is necessary to support required assessments or services that are identified on the customer’s IPE. Both divisions, VR-Blind and VR-General, maintain policies and procedures to provide guidance to counselors, as well as processes to ensure oversight, and monitoring of maintenance payments.
However, as a result of its 2013-2014 review of DARS, the Sunset Commission recommended that DARS “create clear, validated guidelines for counselors to ensure better decision making for successful, cost-effective outcomes”. DARS issued guidance to staff in the form of Guidance Memoranda and policy revisions, and also implemented a rigorous case review process based on risk assessment tools developed in consultation with DARS Internal Audit. As part of the case reviews and quality assurance activities conducted in the past year, instances have been identified in which maintenance payments are being authorized outside of the intent of current policy and regulation. As a result, program management has identified a need to make further revisions to policy to clarify intent and provide more specific guidance to support good decision-making by counselors, consistent with federal and state VR statutes and regulations, as well as sound fiscal principles.
Recommendations
Staff recommends that the Commission adopt the following definition of “normal living expenses” and approve the definition to be added to policy in both division program manuals to ensure compliance and accountability for funds encumbered and paid to consumers for maintenance. The new definition, along with associated proceduralrevisions will ensure that maintenance payments are issued judiciously and fully aligned with the intent of federal regulations. The revisions will revise current policy and procedure to:
- Clarify discrepancies in Texas Labor Code and Commission rule, ensuring alignment with the Code of Federal Regulations;
- Define “normal living expenses” as follows and clarify that maintenance may not be issued to cover normal living expenses;
Normal living expenses include such items as housing, food, clothing, and transportation, and whatever additionalexpenses would be considered necessary to those broad categories [Not directly associated with the receipt of VR services], such as utility costs and vehicle insurance;
- Clarify that maintenance may not be used for the following items as they are not compliant with policy intent and federal regulation:
- Payment of a customer’s mortgage;
- Training, activity, or assessment is in the same town as the customer’s residence (applies to maintenance used for short-term housing only); and
- Reimbursement for any expenses not authorized by the counselor prior to the expense (including but not limited to balances for previous medical services, past due housing, utilities, loans, or related fees and penalties);
- Improve case documentation by requiring logs or receipts for all maintenance, including nonrecurring and short-term shelter maintenance, as well as recurring maintenance;
- Increase management oversight of maintenance payments:
- Require manager approval for all short-term housing maintenance service authorizations.
- Lower the threshold for manager review and approval for nonrecurring maintenance service authorizations from those that are $400 or greater to those that are $200 or greater.
- Lower the threshold for manager review and approval for recurring maintenance service authorizations from to any payments that exceed four consecutive weeks or a total of six cumulative weeks; and
- Require that costs be necessary and reasonable under the circumstances prevailing at the time a decision is made, considering such factors as: 1) individual rehabilitation needs consistent with each individual’s informed choice; 2) the revised definitions proposed herein; 3) market rates or limitations specified by Agency policy; 4) availability of cost-effective alternatives; and 5) established Agency practices regarding incurring costs consistent with Agency policy.
Input from the Rehabilitation Council of Texas (RCT)
RCT agrees with the need to clearly define what “normal living expenses” include and add clarifying language and guidance for staff to ensure compliance with regulations related to maintenance funds. RCT recommends that, in addition to including the definition of “maintenance” from the CFR’s in the program manuals, that the examples maintenance used in the CFR also be included in the manual. They also requested that a system remain in place for exceptions to meet individual consumer needs. RCT further recommended that the threshold for requiring manager review of nonrecurring maintenance service authorizations be reduced from $400 to $300, rather than the staff’s recommendation to reduce the threshold from $400 to $200. Staff does not concur with this recommendation because the average service authorization amount is below $300. A lower threshold is necessary in order to make substantive improvement in the level of management oversight.
DP_VR Policy on Maintenance Payments_February 28, 2017 1