The purpose and effect of the rule amendments is to incorporate in rule by adoption regulations in 34 C.F.R. Part 361, controlling the provision of vocational rehabilitation services under the Rehabilitation Act of 1973, as Amended (21 U.S.C. §§701 ...

 

DEPARTMENT OF EDUCATION
State Board of Education

RULE NO.: RULE TITLE:
6A-25.001: Federal Regulations Adopted by Reference
6A-25.002: Definitions
6A-25.003: Informed Choice
6A-25.004: Referral and Application Process
6A-25.005: Assessment for Determining Eligibility and Priority for Services
6A-25.006: Extended Evaluation
6A-25.007: Ability to Serve All Eligible Individuals and Order of Selection for Services
6A-25.008: Individualized Plan for Employment
6A-25.009: Authorization for Services
6A-25.010: Scope of Vocational Rehabilitation Services
6A-25.011: Comparable Services and Benefits
6A-25.012: Division Determinations, Review Procedures
6A-25.013: Confidentiality and Release of Consumer Information/Records
6A-25.014: Physical and Mental Restoration Services
6A-25.015: Vocational and Other Training Services
6A-25.016: Rehabilitation Technology Services
6A-25.017: Case Closure
6A-25.018: Recovery from Third Parties
6A-25.019: Forms and Documents

PURPOSE AND EFFECT: The purpose and effect of the rule amendments is to incorporate in rule by adoption regulations in 34 C.F.R. Part 361, controlling the provision of vocational rehabilitation services under the Rehabilitation Act of 1973, as Amended (21 U.S.C. §§701 et seq.). It is also to adopt in rule policies in the Division of Vocational Rehabilitation’s Operational Policies and Procedures for DVR Counselors (Counselor Policy Manual), as is required by Section 120.54, F.S., and authorized by Section 413.22, F.S.

SUMMARY: These rules concern the Division’s determination of the eligibility of persons with disabilities for vocational rehabilitation services and providing such persons with those services necessary for the achievement of an employment outcome, consistent with their strengths, resources, priorities, concerns, abilities, capabilities, interests and informed choice. These rules reflect public comment received in the course of six public workshops held throughout the state (and from Disability Rights Florida, as well) in 2010.

SUMMARY OF STATEMENT OF ESTIMATED REGULATORY COSTS AND LEGISLATIVE RATIFICATION:

The Agency has determined that this will not have an adverse impact on small business or likely increase directly or indirectly regulatory costs in excess of $200,000 in the aggregate within one year after the implementation of the rule. A SERC has been prepared by the agency.

The Agency has determined that the proposed rule is not expected to require legislative ratification based on the statement of estimated regulatory costs or if no SERC is required, the information expressly relied upon and described herein:

Any person who wishes to provide information regarding a statement of estimated regulatory costs, or provide a proposal for a lower cost regulatory alternative must do so in writing within 21 days of this notice.

RULEMAKING AUTHORITY: 413.22 FS.
LAW IMPLEMENTED: Chapter 413, Part II. FS.

A HEARING WILL BE HELD AT THE DATE, TIME AND PLACE SHOWN BELOW:

DATE AND TIME: November 15, 2011, 9:00 a.m.

PLACE: Andrew Jackson High School, 3816 N. Main St., Jacksonville, Florida

THE PERSON TO BE CONTACTED REGARDING THE PROPOSED RULE IS: Bill Palmer, Director, Florida Department of Education Division of Vocational Rehabilitation, 2002 Old St. Augustine Rd., Building A, Tallahassee, Florida 32301, [phone]

 

THE FULL TEXT OF THE PROPOSED RULE IS:

6A-25.001 Federal Regulations Adopted by Reference.

The Department adopts and incorporates by reference Title 34, Code of Federal Regulations, Part 361 (http://www.flrules.org/Gateway/reference.asp?No=Ref-00641).

Rulemaking Authority 413.22 FS. Law Implemented 413.24 FS. History–New_________.

 

6A-25.002 Definitions.

(1) “Administrative Review” means the informal internal review process to contest a division determination.

(2) “Department” means the Florida Department of Education.

(3) “Division” means the Florida Division of Vocational Rehabilitation.

(4) “Division determination” means any decision that affects the provision of vocational rehabilitation services to applicants or eligible individuals.

(5) “Meaningful Employment Outcome” means employment consistent with an eligible individual's unique strengths, resources, priorities, concerns, abilities, capabilities, interests and informed choice.

Rulemaking Authority 413.22 FS. Law Implemented 413.24, 413.28, 413.30 FS. History–New________.

 

Editorial Note: Formerly 38J-1.002.

 

6A-25.003 Informed Choice.

(1) An eligible individual may choose to receive necessary vocational rehabilitation services from any qualified or licensed provider. Where applicable, the providers of choice must be licensed by the state of Florida or appropriately accredited to perform such services.

(2) If an individual chooses a service provider outside the service area where he/she resides, the individual shall provide for his/her own transportation costs, unless no qualified provider possessing the required expertise is available or a provider in another area is within a shorter commuting distance to the individual. If the individual selects a provider out-of-state and there are qualified service providers in-state, the individual with a disability shall agree to pay the excess travel and service costs.

Rulemaking Authority 413.22 FS. Law Implemented 413.208, 413.24, 413.28, 413.30, 413.731 FS. History–New_________.

 

Editorial Note: Formerly 38J-1.003.

 

6A-25.004 Referral and Application Process.

(1) Representatives, parents, and guardians.

(a) Individuals may select a representative. The individual’s representative shall be included in the vocational rehabilitation process with the consent of the individual or when so ordered by a court of competent jurisdiction. The signature of an authorized representative shall be valid only if the individual or recipient of vocational rehabilitation services expressly designates such representative in the presence of the counselor, and such designation is noted by the counselor in the individual’s records. Documentation shall include a consent to release of information to the representative.

(b) Parents or guardians shall be included in the vocational rehabilitation process only if the individual with a disability is a minor (less than eighteen (18) years old) or pursuant to paragraph (1)(a) of this rule.

(c) Guardians shall be included in the vocational rehabilitation process only if participation is within the scope of the guardianship, or pursuant to paragraph (1)(a) of this rule. The signature of a legal guardian on behalf of an individual or recipient of services from the division shall be invalid unless it is accompanied by one of the following:

1. A court order establishing such guardianship, or

2. A statement by the guardian that the individual or recipient of services is a minor and the guardian is the natural parent and/or legal custodian of the child.

(d) Representatives, parents, or guardians included in the rehabilitation process shall receive written notice of all division determinations that suspend, reduce or terminate services. They shall also be entitled to take part in all meetings between the division and the individual receiving services.

(2) Applications.

(a) Neither a referral nor an application is required for an appointment with a counselor. An application may be completed at time of contact.

(b) All individuals have the right to apply for division services, to have an appointment, and to have a decision made regarding their eligibility for services. The refusal to accept an application or to interview the individual constitutes a “denial of access” to a public program and is a violation of Section 504 of the Rehabilitation Act of 1973, as amended.

(c) A signed and dated application for services, or a signed and dated request for services is required to complete the division application. An applicant must provide his or her signature on the application form if he/she is at least eighteen (18) years of age and legally competent. If the applicant is less than eighteen (18) years of age or is legally incompetent, the applicant’s parent, legal guardian or representative must provide his or her signature, pursuant to paragraphs (1)(a) and (1)(c) of this rule, on the application form in addition to the individual’s signature. Form DVR-003A, State of Florida, Department of Education, Division of Vocational Rehabilitation, Referral/Application for Vocational Rehabilitation Services, (rev. 05/10) and Form DVR 003B, State of Florida, Department of Education, Division of Vocational Rehabilitation, Referral/Application for Vocational Rehabilitation Services, Spanish, (rev. 05/10) as incorporated by reference in Rule 6A-25.019, F.A.C.

Rulemaking Authority 413.22 FS. Law Implemented 413.24, 413.28, 413.30 FS. History–New_________.

 

6A-25.005 Assessment for Determining Eligibility.

(1) Individuals must have legal status in the United States and be authorized to work. Documents that establish employment eligibility and identity must be consistent with forms required by the United States Citizenship and Immigration Services.

(2) An individual must be physically present in the state to qualify for vocational rehabilitation services if he or she is not a resident of the state.

(3) In the assessment for determining eligibility and vocational rehabilitation needs, the division shall, to the greatest extent possible, use information that is available, sufficient, and appropriate for purposes of determining eligibility. In instances where the division is funding treatment, existing information may be no older than one (1) year.

(4) The division shall prepare a preliminary assessment of each applicant that shall include:

(a) Identification of any barriers to employment for the applicant;

(b) An appraisal of the applicant’s abilities, functional limitations, and rehabilitation needs;

(c) An initial appraisal of rehabilitation technology needs to successfully complete an assessment;

(d) A description of the individual’s expectations with respect to assistance from the division;

(e) An appraisal of the individual’s understanding of informed choice regarding the services available from the division;

(f) Voter registration form completed or declined, and

(g) Initiation of the eligibility assessment.

(5) Diagnoses.

(a) A signed report, electronic or otherwise, from a qualified provider containing a diagnosis of the individual’s disability shall be maintained in the individual’s records.

(b) Diagnoses by professional staff with less than M.D./Ph.D. credentials shall be acceptable if such individuals are employed by licensed/certified facilities with M.D./Ph.D. oversight. Signature of the individual providing oversight is not required.

(6) Mental Health.

(a) The diagnosis of a mental health disorder shall be made by a psychiatrist or a licensed clinical psychologist. A licensed school psychologist may only be used for developmental diagnoses.

(b) Neuropsychological and specific learning disability assessments shall be made by qualified personnel approved to perform such assessments and licensed under appropriate licensure laws.

(c) Diagnosis of mental or emotional disorders shall be consistent with the Diagnostic and Statistical Manual of Mental Disorders (“DSM”) published by American Psychiatric Publishing, 1000 Wilson Boulevard, Suite 1825, Arlington, VA 22209, [e-mail].

(7) Chemical Dependency.

(a) Individuals who are actively abusing drugs shall not fall under the category “individual with a disability.” In the context of chemical dependency, an individual is an “individual with a disability” who:

1. Has successfully completed a supervised drug rehabilitation program and is no longer engaging in such use;

2. Participates in a supervised rehabilitation program and is no longer engaging in such use; or

3. Is mistakenly regarded as engaging in such use but is, in fact, not engaging in such use. Alcohol or drug testing may be reasonable to ensure that the individual is no longer engaging in the use of alcohol or illegal drugs.

(b) The eligibility decision by the counselor shall be based upon a current assessment of psychological functioning and a demonstrated desire by the individual to remain substance free and participate with available resources, e.g., Alcoholics Anonymous, Narcotics Anonymous, local community drug and alcohol awareness centers.

(8) Adjustment Disorders.

(a) Adjustment Disorders are acute psychiatric/ psychological impairments. An adjustment disorder may be in response to temporary situational conditions that are frequently resolved within a short period of time, but do cause substantial impediments to employment.

(b) Six (6) months after receiving the adjustment disorder diagnosis, the individual must be reevaluated.

(c) If an individual with an adjustment disorder is found ineligible for the services provided by the division, the ineligibility decision shall be based on an assessment of whether the adjustment disorder causes a substantial impediment to employment and whether the individual can benefit from the division’s services in terms of an employment outcome.

(9) Borderline Intellectual Functioning.

(a) Borderline Intellectual Functioning is not an acceptable diagnosis for the purposes of eligibility for the division’s services.

(b) Borderline Intellectual Functioning is interpreted as an Intelligence Quotient (IQ) score of 70-79 plus or minus five (5) points standard deviation in testing. If significant adaptive functioning deficits are indicated for those scoring 70-75, it is appropriate to discuss with the psychologist changing the diagnosis to intellectual disability.

(c) Individuals diagnosed with Borderline Intellectual Functioning with an IQ score of 76-79 without adaptive functioning deficits would not be eligible for the division’s services.

(10) Intellectual Disability.

(a) The diagnosis of an intellectual disability shall be made by a psychiatrist, licensed clinical psychologist, or licensed school psychologist.

(b) The DSM defines the upper range of intellectual disability (also referred to as mental retardation) as an IQ of 70 plus or minus five (5). This means that an individual may be diagnosed as mildly intellectually disabled with an IQ as high as 75 if there are significant adaptive functioning deficits. An individual’s IQ can be as low as 65 and not be coded as intellectually disabled as long as adaptive functioning is adequate. The lower the IQ, the more probable the presence of adaptive functioning deficits.

(c) In diagnosing an intellectual disability, there is greater reliability with lower IQ scores regardless of the age that an individual is tested. It is reasonable to use an early IQ test score that is less than 65 for documentation of an individual’s disability.

(d) Further assessments may be conducted after eligibility determination to assist with Individualized Plan for Employment (IPE) planning if necessary.

(e) Retesting may be ordered for individuals who have an IQ score of 65 to 75 if the testing was done prior to 9th grade. The individual’s adaptive functioning may have improved and intellectual disability diagnostic criteria would not be met as a result.

(11) Specific Learning Disabilities. A diagnosis of specific learning disability shall be based on testing done in the 9th grade or later using the Wechsler Intelligence Scale for Children (WISC) ages three (3) to sixteen (16) and/or the Wechsler Adult Intelligence Scale (WAIS) ages sixteen (16) and older.

(12) Hearing Impairments.

(a) “Hard of Hearing” means hearing impairment resulting in a functional loss, but not to the extent that the individual must depend primarily upon visual communication. There is usually a thirty (30) decibel (db) loss in the better ear with speech discrimination below fifty (50) percent.

(b) “Deafness” means a hearing impairment of such severity that the individual must depend primarily upon visual communication such as lip-reading, writing, manual communication and gestures. There is usually a 70 decibel (db) loss or greater in both ears and a speech discrimination score of forty (40) percent or less in the better ear.

(c) A diagnosis of a hearing impairment shall be based upon the results of an auditory evaluation performed by a licensed audiologist.

(d) An ophthalmologic evaluation shall be obtained in all cases of deafness, retinitis pigmentosa, and usher syndrome. Individuals suspected of having ear disease should be evaluated by a physician skilled in diseases of the ear, e.g., an ENT, Otologist, and/or Otolaryngologist.

(13) Speech Impairments. Diagnosis of a speech impairment shall be made by a speech language pathologist.

(14) Vision Impairments. A vision impairment is a condition resulting in the loss of visual acuity and/or limiting an individual’s field of vision. Individuals who meet the definition of “blind” in Section 413.033(1), Florida Statutes, shall be referred to the Division of Blind Services, Florida Department of Education.

(15) Before or at the same time an individual is accepted as eligible for the division’s services, the division shall certify that the individual has met the basic eligibility requirements.

(16) Eligibility Determination Extension. Documentation of an agreement between the counselor and individual to extend eligibility determination beyond sixty (60) days after application, including an agreed-upon time frame and stating the specific exceptional and unforeseen circumstances on which the extension is based, shall be contained in the individual’s records. If the division is unable to obtain such agreement, a case entry that contains the specific exceptional and unforeseen circumstances, or work trial experiences and revised time frame, shall be placed in the individual’s records.

Rulemaking Authority 413.22 FS. Law Implemented 413.24, 413.28, 413.30 FS. History–New_________.

 

6A-25.006 Ability to Serve All Eligible Individuals and Order of Selection for Services.

(1) In order to determine the level of significance of the individual’s disability, the division through a counselor shall identify:

(a) Severe impairments which seriously limit one or more functional capacities;

(b) The vocational rehabilitation services needed to address those impairments, and

(c) An estimate of the time that services will be provided to reach an employment outcome.

(2) Eligible individuals will be selected by the division to receive vocational rehabilitation services in descending order of the following priority classifications.

(a) Criteria for Most Significant Disability (Category 1). An individual with a disability which:

1. Seriously limits three (3) or more functional capacities in terms of work;

2. Requires three (3) or more primary services;

3. Requires services to be provided over an extended period of time (at least twelve (12) months), and

4. Is not likely to be corrected through surgical intervention and/or other treatment modes.

(b) Criteria for Significant Disability (Category 2). An individual with a disability which:

1. Seriously limits one (1) or two (2) functional capacities in terms of work;

2. Requires two (2) or more primary services;

3. Requires services to be provided over an extended period of time (at least six (6) months), or

4. The individual is a recipient of Social Security Disability Benefits (SSDI) or Supplemental Security Income (SSI) as a result of disability or blindness.

(c) Criteria for Individual with a Disability (Category 3). An individual with a disability which:

1. Does not seriously limit functional capacity in terms of work, or

2. Requires services that are expected to last less than six (6) months.

(3) Primary services. Primary services are major services that are necessary to prepare the eligible individual for employment. Primary services include counseling and guidance, training, treatment, and job placement. Primary services shall not include assessment services cited in the Individualized Plan for Employment (IPE). Each service, if provided alone, could reasonably be expected to directly benefit the individual in terms of an employment outcome.

(4) Functional Capacities. Limitations on the following functional capacities are used to determine the level of significance of disability. These limitations are derived from the individual’s impairments.

(a) Mobility means an individual’s physical access to his or her environment, either through his or her own ability (actions) or with the assistance of others. Mobility also includes transportation to and from a worksite. The functional capacity of mobility is seriously limited when the individual:

1. Due to disability, has no independent mobility and must use a mobility device (wheelchair, walker, scooter) or requires a personal care assistant;

2. Due to physical, cognitive or mental disability, is unable to independently drive, or arrange or use public transportation;

3. Due to disability, has limitation(s) in balance and gross motor coordination;

4. Due to disability, is unable to climb one flight of stairs or walk 100 yards without a pause;

5. Due to disability, is unable to lift, reach, carry, grasp objects, push or pull; or

6. Due to disability, requires rehabilitation engineering for home, vehicle, or work modifications.

(b) Communication means the individual’s ability to express himself or herself through speech and/or the ability to receive and process communication. The functional capacity of communication is seriously limited when the individual:

1. Due to disability, cannot communicate without hearing aids(s) and/or adaptive equipment, interpreter, e-mail, or relay services;

2. Due to disability, cannot speak or spoken language is unintelligible;

3. Due to disability, is unable to control inappropriate communication due to cognitive dysfunction or mental illness (may say bizarre things, hear voices, repeat self incessantly, and/or inappropriate comments); or

4. Due to disability, cannot focus, concentrate, or understand what is being communicated.

(c) Self-Care means the ability to conduct the essential activities of daily living unassisted by another individual. The functional capacity of self-care is seriously limited when the individual:

1. Due to disability, requires personal assistance with dressing, bathing, eating, toileting, grooming, preparing meals, transferring from bed to chair; or

2. Due to disability, requires supervision or personal assistance services with money management (banking, balancing a checkbook, or making change).

(d) Self-Direction means the capacity to organize structure and manage activities required to obtain and maintain employment. The functional capacity of self-direction is seriously limited when the individual:

1. Due to cognitive dysfunction or mental illness, requires ongoing prompts or assistance to understand and remember instructions;

2. Due to cognitive dysfunction or mental illness, requires ongoing prompts or assistance in the area of concentration and persistence to stay on task; or

3. Due to cognitive dysfunction or mental illness, requires customized technology to accommodate the lack of concentration, to remember instructions, or to understand instructions.

(e) Interpersonal Skills means the individual’s ability to interact in a socially acceptable manner at work with coworkers, supervisors, peers and the general public. The functional capacity of interpersonal skills is seriously limited when the individual:

1. Due to disability, does not accept instructions and does not respond appropriately to feedback from supervisors;

2. Due to disability, does not get along with coworkers or peers; or

3. Due to disability, does not maintain socially appropriate behavior at work based upon what would be normally accepted in a work environment.

(f) Work Tolerance means the ability to carry out tasks in an efficient and effective manner over a sustained period of time. The functional capacity of work tolerance is seriously limited when the individual:

1. Due to disability, is unable to carry out work tasks without the intervention of job coaching or natural supports to perform work activities;

2. Due to disability, is unable to sustain mental, cognitive or physical activities in a work environment without the use of individualized accommodation or customized rehabilitation technology; or

3. Due to disability, unable to work around certain substances or certain environments.

(g) Work Skills means the specific job skill required to learn and carry out work functions. The functional capacity of work skills is seriously limited when the individual:

1. Due to disability, is limited or unable to retain new information or new learning without assistance; or

2. Due to disability, can only learn work skills through constant repetition.

(5) Order of Selection. The order of selection permits immediate reclassification into a higher priority category when there is a change resulting in additional functional limitations that require additional primary services and/or length of time.

Rulemaking Authority 413.22 FS. Law Implemented 413.24, 413.28, 413.30, 413.72 FS. History–New_________.

 

6A-25.007 Individualized Plan for Employment.

(1) The Individualized Plan for Employment (IPE) must be developed within 120 calendar days of the eligibility determination or activation from the waiting list, whichever is later. Meeting the 120-day timeframe is the mutual responsibility of the division through its counselor and the individual.

(2) If the IPE cannot be developed within 120 days due to exceptional and unforeseen circumstances, the individual, or an authorized representative of the individual, and the division must agree to a specific extension of time.

(3) The IPE or IPE amendment must be approved by a supervisor before being signed by the counselor. No vocational rehabilitation services proposed under an IPE or IPE amendment are effective absent such approval.

Rulemaking Authority 413.22 FS. Law Implemented 413.24, 413.28, 413.30 FS. History–New_________.

 

6A-25.008 Authorization for Services.

(1) The division shall not pay for goods or services unless such goods or services are listed in the Individualized Plan for Employment (IPE) or Individualized Plan for Extended Evaluation (IPEE), or an amendment thereto, or are part of the assessment for determining eligibility and vocational rehabilitation needs and:

(a) The goods or services were authorized in writing by the division prior to the time they were provided; or

(b) The goods or services were provided under emergency circumstances subsequent to verbal authorization by the division.

(2) Prior Approval. Certain vocational rehabilitation services must be approved at the state office or area office level prior to being initiated.

(a) Services that require prior approval at the state office level are:

1. All transplants;

2. All procedures to be performed on persons with cancer;

3. Cochlear implants and other implantable hearing devices;

4. Gastrointestinal procedures (e.g., stomach stapling) for morbid obesity;

5. Hyperbaric oxygen treatments for any condition;

6. Intrathecal baclofen infusion for cerebral palsy (cerebral dystonia);

7. Brain surgery;

8. Comprehensive inpatient/outpatient pain management programs conducted by a multi-specialty team or by an individual physician;

9. Penis prosthesis;

10. Any cosmetic/reconstructive surgery;

11. Any medical conditions with uncertain prognosis or outcome;

12. Sterilization, abortion, sex change operations or treatment;

13. Bone stimulator; or

14. Treatment to be provided out of state except in southern Georgia or Alabama when in close proximity to the individual’s home.

(b) Services that require prior approval at the area office level are:

1. Services to Division of Vocational Rehabilitation staff and family members;

2. Services on an IPE or IPE amendment for eligible individuals with brain and spinal cord injury which can reasonably be expected to require expenditures of totaling $30,000 or more. Approval will be required for each increment of $20,000 thereafter. For all other eligible individuals, services on an IPE or IPE amendment which can reasonably be expected to require expenditures totaling $20,000 or more. Approval will be required for each increment of $10,000 thereafter;

3. Training to be provided out of state except in southern Georgia or Alabama when in close proximity to the individual’s home;

4. Graduate level training;

5. Maintenance payments greater than $500 per month;

6. Other goods and services over $500 provided and not classified as maintenance;

7. Waivers of maintenance in extenuating circumstance; and

8. Purchase of non-adaptive computers and related equipment of $3,000 or more.

(3) Exceptions. The division shall pay a reasonable amount for necessary and customary services incidental to surgery, hospitalization or medical diagnosis when such services were not authorized at the time of authorization of a primary service.

(4) The division’s highest allowable fee for health care services is the amount payable for such services in Florida under the Medicare Part B system or, for hospital per diem payments, the amount payable under the Medicaid system. In setting its highest allowable fee for all other services, the division shall ensure such fee is not set so low as to deny individuals the right to make informed choices among service providers. The providers of choice shall agree to accept as payment for the service rendered no more than the division's highest allowable fee. If an individual chooses a service provider that charges in excess of the division’s highest permitted fee, the individual shall be solely responsible to fully pay such excess, and a signed statement to that effect shall be placed in the case record.

Rulemaking Authority 413.22 FS. Law Implemented 413.24, 413.28, 413.30, 413.731 FS. History–New_________.

 

6A-25.009 Scope of Vocational Rehabilitation Services.

(1) Maintenance. Maintenance does not mean support for the discharge of court-ordered obligations or indebtedness of any kind incurred prior to or subsequent to an application for rehabilitation services.

(2) Occupational Licenses, Tools, Equipment and Initial Stocks and Supplies.

(a) Occupational licenses shall include any license, permit, or other written authority required by a state, city or other governmental unit to enter an occupation or enter self-employment.

(b) Occupational tools shall meet the requirements of the employment.

(c) The division shall retain the right to provide the individual with previously used occupational tools.

(d) If the aggregate cost of occupational tools is less than or equal to $1,000, such occupational tools shall become the property of the individual immediately upon the purchase thereof. If the aggregate cost of the occupational tools exceeds $1,000, such occupational tools shall become the property of the individual upon purchase; however, title and ownership to such occupational tools shall revert to the division upon written demand by the division, provided circumstances exist justifying the closure of the individual’s case for reasons other than a successful completion of the Individualized Plan for Employment (IPE). When title to such occupational tools reverts to the division, the individual who received such occupational tools shall make them immediately available to the division.

(3) Transportation.

(a) The counselor shall explore the ability of an individual to utilize existing transportation resources to participate in vocational rehabilitation services. Transportation resources shall include:

1. The individual’s current mode of transportation, including a privately-owned vehicle;

2. The reasonableness of using other modes of transportation, such as taxicabs, carpools, co-workers, volunteers or attendants; paratransit, public transit or other community services. The division shall use the Florida Commission for the Transportation Disadvantaged coordinated transportation system for provision of transportation services to consumers when possible.

(b) An individual who requests mileage reimbursement for transportation in a privately-owned vehicle must present a valid driver’s license. If the individual is not a driver, the individual must provide a plan to the counselor that describes how the individual will utilize family members, personal care attendants or others as drivers in support of the rehabilitation plan.

(c) Vehicle Repairs.

1. “Used vehicle” means a vehicle that has been titled and registered to at least one (1) owner or has been used as a demonstration model.

2. Repairs or costs for used vehicle operation may be made if they are necessary for the individual to participate in vocational rehabilitation services. The individual must have a valid driver’s license and present a current vehicle registration document for the used vehicle considered for repair. If the individual is not the owner of the used vehicle, the individual must also present a written and signed statement from the vehicle owner that this vehicle is provided to the individual for use during his/her rehabilitation program.

3. If it is determined that used vehicle repairs are necessary, an estimate completed by a certified mechanic is required to document the cost of repairs.

4. The trade-in value of the used vehicle to be repaired shall be determined by reference to generally accepted valuation methods. The maximum amount that the division will expend on repairs for the life of the used vehicle is one and one- half times the trade-in value.

(4) Post-Employment Services. A decision to provide post-employment services versus opening a new case shall be based on individual considerations taking into account the current validity of previous data.

Rulemaking Authority 413.22 FS. Law Implemented 413.24, 413.28, 413.30, 413.32, 413.731 FS. History–New_________.

 

6A-25.010 Comparable Services and Benefits.

(1) If comparable services and benefits are not available to the individual at the time needed to achieve the employment outcome identified in the Individualized Plan for Employment (IPE), or if the benefits exist but are not available at the time needed to satisfy objectives in the IPE, the division may authorize funding directly only until comparable benefits and services become available.

(2) Comparable services and benefits do not include awards and scholarships based on merit that are granted without restrictions as to their use by the individual, but do include qualified tuition programs as defined in 26 U.S.C. §529 and other programs similar in nature and purpose.

(3) If an eligible individual is a Social Security Administration (SSA) Ticket to Work holder whose Ticket is assigned to an Employment Network (EN), the division shall consider all goods and services referenced in the IPE to be comparable services and benefits to be purchased or provided by an EN with which the eligible individual’s Ticket is assigned.

Rulemaking Authority 413.22 FS. Law Implemented 413.24, 413.28, 413.30 FS. History–New_________.

 

6A-25.011 Division Determinations, Review Procedures.

(1) Administrative Review.

(a) An individual may request an administrative review when he or she is dissatisfied with and wishes to dispute a division determination. The Area Director or his or her designee shall, upon request by the individual, conduct the administrative review as soon as possible to facilitate the speedy resolution of the dispute.

(b) The individual or his or her authorized representative shall have twenty-one (21) calendar days from the date of receipt of the notification of determination to inform the division in writing of his or her desire for an administrative review. If the division provides the notification to the individual or authorized representative by mail, five (5) days shall be added to the prescribed period. The individual may elect to bypass the administrative review and file a petition for an administrative hearing. The individual, the individual’s representative or Client Assistance Program, if representing the individual, may initiate a timely request to extend the twenty-one (21) days.

(c) The individual or authorized representative may attend the administrative review in person or by teleconference and shall have the right to present information relevant to the determination.

(d) The Area Director or his or her designee shall render his or her decision based upon the individual’s case file, any information presented by the individual or by the division at the administrative review, any other pertinent information, and applicable law, regulation, and policy.

(e) The Area Director or his or her designee shall render a decision in writing consisting of findings and conclusions within five (5) working days of the administrative review.

(f) The individual shall have the right to challenge the administrative review decision by timely filing with the Director of the division a request for mediation or a petition for an administrative hearing within twenty-one (21) days of receipt of the decision.

(2) Mediation.

(a) If an individual files a petition for an administrative hearing, and upon the agreement of the individual and the division, the dispute shall be mediated by a family, county court or civil court mediator certified by the Florida Supreme Court. Such mediation shall be paid for by the division.

(b) The division shall propose three (3) certified mediators from the judicial circuit in which the individual resides. The individual shall select from such list one (1) of the three (3) to mediate the dispute. The mediator may not have been previously involved in the individual’s vocational rehabilitation or have a personal, professional, or financial interest that would impair the mediator’s objectivity.

(3) Administrative Hearing.

(a) If the individual is dissatisfied with any determination made by the division and/or decision of the administrative review or the outcome of mediation, or has elected to bypass the administrative review or mediation, the individual may file a written request for an administrative hearing before an Administrative Law Judge (ALJ) assigned by the Division of Administrative Hearings (DOAH).

(b) The request for an administrative hearing must be made within the twenty-one (21) days after the administrative review decision is received, or if the administrative review option is bypassed by the individual, within the twenty-one (21) days after the notification of the determination of the division is received. If the division provides the notification to the individual or authorized representative by mail, five (5) days shall be added to the prescribed period. The request for an administrative hearing must be addressed to the Director of the division.

(c) The individual may be represented at the administrative hearing by an attorney or any person selected by the applicant or eligible individual competent to meet the requirements for a personal representative pursuant to Rule 28-106.106, F.A.C. During the administrative hearing, the individual, or as appropriate, the individual’s representative, may present witnesses and evidence and may examine all witnesses and other relevant sources of information and evidence.

(d) The administrative hearing shall be conducted in conformance with the requirements of Chapter 120, Florida Statutes, and Chapter 28-106, F.A.C.

(e) The ALJ shall issue a Recommended Order based on Federal and Florida law. The Florida Commissioner of Education shall review the Recommended Order and the parties’ Exceptions to the Recommended Order, if any, and, pursuant to Section 120.57, Florida Statutes, issue a Final Order. The Commissioner may not overturn or modify the ALJ’s Recommended Order except as provided in Section 120.57(l), Florida Statutes.

(4) Judicial Review.

(a) An individual who has exhausted all available and adequate administrative remedies and is aggrieved by the administrative disposition of the matter in dispute is entitled to judicial review as provided by Section 120.68, Florida Statutes.

(b) An individual who has pursued judicial review as in paragraph (4)(a) of this rule and disagrees with the decision of the judicial review, has a right to bring a civil action as provided by 29 U.S.C. §722(5)(J).

Rulemaking Authority 413.22 FS. Law Implemented 413.24, 413.28, 413.30, 413.731 FS. History–New_________.

 

Editorial Note: Formerly 38J-1.006.

 

6A-25.012 Confidentiality and Release of Consumer Information/Records.

(1) Request for Case Record Amendment.

(a) The division shall accept additional information for inclusion in the case record to the extent it determines such information to be reasonably material to providing or not providing rehabilitation services to the applicant or individual.

(b) Any such additional information shall be identified as produced by the applicant or individual.

(c) The division shall not alter the existing case record in any other way.

(2) Information that may be harmful to the applicant or individual may not be released directly to him or her, but instead must be provided through a designated representative, physician or a licensed psychologist. HIV/AIDS tests and any related information shall not be released unless release is specifically requested by the applicant/individual or his or her guardian (if the individual is incompetent). The release of HIV/AIDS information to the applicant or individual or the applicant’s or individual’s guardian must be made in a face-to-face meeting during which the division is prepared to offer counseling to the applicant or individual (and guardian, if appropriate) regarding such information. All references to HIV/AIDS information in case file documents must be stricken unless the foregoing conditions are met. HIV information shall not be released without the individual’s written consent except to a medical provider who will be performing services that would put such provider at risk of contracting HIV/AIDS from the individual.

(3) Upon the written request of the applicant or individual, the division may release the same information to third parties that it could release to the applicant or individual or the applicant’s or individual’s representative. HIV/AIDS information shall not be released unless such release is specifically requested in writing by the applicant or individual or the applicant’s or individual’s representative.

(4) The division may destroy an individual’s closed case records in accordance with the Department of State, Division of Library and Information Services Schedule GS1-SL.

Rulemaking Authority 413.22 FS. Law Implemented 257.36(6), 413.24, 413.28, 413.30, 413.341 FS. History–New_________.

 

6A-25.013 Physical and Mental Restoration Services.

(1) Medical, psychological, or dental consultation shall be required prior to treatment for extraordinary or experimental procedures. Consultants may assist the division in:

(a) Interpreting medical, dental, or psychological reports;

(b) Determining the need for further diagnostics or for confirming the suitability of restoration services as recommended by a qualified physician, dentist, or psychologist;

(c) Determining whether a physical or mental condition is chronic and stable or slowly progressive;

(d) Determining the implication of the applicant's physical or mental condition for rehabilitation potential;

(e) Determining the appropriate fees for medical, dental or psychological procedures;

(f) Determining the best option for various medical procedures;

(g) Determining the most appropriate hospital and the most cost-efficient fee.

(2) In order to avoid even the appearance of a conflict of interest, consultation shall not occur with the actual provider of either a diagnostic or a treatment service unless no other provider is available.

(3) Dental services. Dental services may be provided to an individual if the individual’s dental condition is a substantial impediment to employment; is slowly progressive; is contributing significantly to the complication of another physical condition, and that condition constitutes a substantial vocational impediment.

(a) The use of a dental condition as a primary disability is not prohibited but would be limited to the following instances:

1. When the dental condition creates toxicity and causes physical symptoms in other systems of the body. This determination must be made by an internist and treatment approved by the division’s medical consultant.

2. When the dental condition results in a cosmetic problem that is severe enough to prevent an individual from obtaining or retaining a job in which the individual would be serving the public.

(b) Preventive dental services may be provided only as an adjunct to dental treatment. A preventive dental service in and of itself shall be prohibited.

(4) Hearing aids.

(a) The choice of hearing aids shall be based on the recommendation of a licensed audiologist and the individual’s current hearing and speech capabilities. The selected hearing aid must enable the individual to successfully complete the services in the Individualized Plan for Employment (IPE) that are needed to secure, retain or regain employment. If the individual prefers a more expensive hearing aid, the individual must pay the difference in cost between the required hearing aid and the chosen one.

(b) The purchase of a hearing aid shall be based on the manufacturers’ single unit price (MSUP) plus a division-established allowance to cover programming, fitting, dispensing, up to two (2) follow-up visits after the initial 30-day trial period, earmold(s), and 1-year warranty.

(5) Bariatric Surgery. The division may consider providing bariatric surgery only if an individual’s weight constitutes a substantial impediment to employment. The division may consider providing bariatric surgery to those persons for whom it is medically necessary, because their medical condition will not allow them the time to lose weight by conservative approaches (balanced eating program and therapy for one (1) year) or for whom more conservative approaches have failed to result in weight loss. The medical risks involved in the surgery and risk of surgery failure must justify the imposition of the following conditions:

(a) The individual must provide documented evidence of vocational impairments that exist at the time of request.

(b) An individual requesting bariatric surgery as an elective procedure must provide records of nutritional counseling and attempt at weight loss with a balanced diet (may be through a weight loss program or in consultation with a nutritionist or doctor) for at least one (1) year prior to the division’s considering sponsoring bariatric surgery. The division may assist with the costs of counseling and weekly fees for weight loss programs.

(c) The individual must submit to psychological evaluation and therapeutic counseling, if recommended, regarding the individual’s current psychological status, expectations about the surgery, and ability to maintain the extreme dietary discipline required after surgery.

(d) The individual must provide documentation from a doctor that the individual can safely undergo the surgery and be expected to return to employment.

(e) The individual must agree to work with a nutritionist after surgery for six (6) months.

Rulemaking Authority 413.22 FS. Law Implemented 413.24, 413.28, 413.30, 413.731 FS. History–New_________.

 

6A-25.014 Vocational and Other Training Services.

(1) Training materials. If the aggregate cost of training materials purchased by the division is less than or equal to $1,000, such training materials shall become the property of the individual immediately upon purchase.

(a) If the aggregate cost of training materials purchased by the division exceeds $1,000, such training materials shall become the property of the individual upon purchase; however, title and ownership to such training materials shall revert back to the division upon written demand by the division provided circumstances exist justifying the closure of the individual’s case for reasons other than a successful completion of the employment outcome.

(b) When title to training materials reverts to the division, the individual who received such training materials shall immediately make the training materials available to be secured by the division.

(2) Pell Grants.

(a) Pell Grants may only be used for expenses related to an individual’s participation in an educational program. Such expenses include, but are not limited to, tuition fees, room and board (or living expenses for a student who does not contract with the school for room and board), transportation, books, supplies, and rental or purchase of a computer.

(b) The individual must provide the division with Pell Grant award or denial letters.

(c) The division may sponsor tuition, fees, books and supplies for the initial term while the individual’s Pell Grant application is processed. The division may not sponsor subsequent terms unless the individual’s Pell Grant application was denied or a financial aid officer verifies the grant has not been awarded. In the event that an individual is awarded the Pell Grant for a semester in which tuition, fees, books, and/or supplies have been sponsored by the division, that individual shall reimburse the division for the full amount of the expenditures up to the amount of the Pell Grant. Pell Grant money in excess of this amount must be used by the individual for related educational expenses.

(3) Individuals may choose to attend a private school or private or out-of-state college or university. If an individual selects an out-of-state or private institution, such institution must be fully accredited and in compliance with the 1964 Civil Rights Act, Title IX of the Education Amendments of 1972, and Title V of the Act in order to receive payment from the division. If an out-of-state or private institution is used on the basis of individual preference, costs shall be paid by the division at the same rate as that for a Florida public institution, with the individual being responsible for paying any cost differences. Under such circumstances, costs of ancillary services such as interpreters for the deaf, note takers, and other accommodations shall be covered by the division only if such services are not provided by similar Florida public institutions or by the private or out-of-state institution chosen by the individual. When providing training or education services, the division shall pay only the amount charged by Florida’s public colleges/universities or vocational schools (less the amount the individual is eligible to receive in grants), unless attendance at an out-of-state or private college or university or private training program is:

(a) Necessary due to its unduplicated educational resources to prepare for, retain or regain the meaningful employment outcome; or

(b) The most cost effective option when taking into account transportation and maintenance due to location or when taking into account available grant and scholarship funds (except scholarships based on merit); or

(c) Necessary due to circumstances beyond the eligible individual’s control such as personal illness, physical limitation, the need for part-time employment or to care for children or other family members and other similar circumstances; or

(d) Paid by grant, award or scholarship monies (except those based on merit) sufficient to offset increased cost to the division.

(4) The division shall not continue payment for training or educational programs for eligible individuals who fail to maintain institution standards for both satisfactory academic performance and a full academic load unless such failure is due to:

(a) Circumstances beyond the eligible individual’s control such as personal illness, physical or mental limitations;

(b) A need for part-time employment; or

(c) Caring for children or other family members.

(5) If an individual has to retake a course due to a failing grade and/or fails to attend the appropriate number of classes and the failure to attend was within the individual’s control, the division shall have no obligation to pay for the student’s retaking of the course.

(6) The awarding of a degree or certificate shall be within a reasonable time frame.

Rulemaking Authority 413.22 FS. Law Implemented 413.24, 413.28, 413.30, 413.32, 413.731 FS. History–New_________.

 

6A-25.015 Building Modifications.

(1) Building modifications consist of alterations to homes, condominiums, apartments, and worksite facilities for the purpose of accessibility for individuals with disabilities. The division will provide modifications that provide an accessible environment, consistent with the Florida Accessibility Code for Building Construction, and comply with local and state building codes.

(2) Residential Architectural Modifications.

(a) The division may provide a limited range of residential architectural modifications if:

1. The modifications are required to achieve the employment outcome of an approved Individualized Plan for Employment (IPE), and

2. The modifications can be made with conformance to all applicable building codes.

(b) The division will provide modification services for accessibility to a bathroom and a bedroom. Modifications to other areas such as living rooms are limited to doorways unless further modification is justified by the individual’s employment needs.

(c) The division may provide modifications to the kitchen if the individual is the primary person who prepares food.

(d) The division will provide a single access route through the most ideal location. If a second route is required for emergencies, an additional access route will be provided or an egress window, whichever is more appropriate. Guidelines for an alternate route include situations in which:

1. No other resident or person typically present is available or physically capable of assisting or carrying the individual to safety.

2. The individual is required to access the primary route through the kitchen or like area.

(e) Space contained within the existing roof line and foundation of the home will be considered for accessibility. Additions may be recommended only if the existing structure cannot be modified cost-effectively.

1. If the required accessibility can be provided within the existing roofline, but the individual/owner wants an addition, the owner must prepare drawings to scale and specifications for review by the rehabilitation engineer.

2. The division may consider the addition only if the cost is equal to or less than modifying the original space and the accessibility meets the individual’s needs. If the cost is more than modification of the original space, and the individual wishes to pay the difference to have the addition, the difference in cost must be paid to the contractor prior to the division’s payment for the project.

(f) The division will not pay for any portion of new construction of stand-alone buildings.

(g) The division will not purchase or modify existing swimming pools, heated pools, jacuzzis, whirlpool tubs or saunas. If a doctor prescribes therapy that requires a pool, jacuzzi, whirlpool or sauna, the counselor will advise the individual in locating an accessible facility which provides the prescribed therapy under the supervision of a qualified therapist or an alternative mode of therapy.

(h) Portable rehabilitation technology will be provided for accessibility to rental or leased property, whenever possible. Limited structural modifications for the purposes of widening doorways may be provided when the counselor and the rehabilitation engineer agree the modifications are justified by the individual’s employment and living needs.

(i) The division will not provide modifications to a building that does not meet local and state building codes.

(j) Prior to the authorization of any building modifications, the counselor and individual will obtain all necessary approvals from the property owner, homeowner’s associations, and/or any persons with an interest in such variances for the property.

(3) Worksite Modifications.

(a) Worksite modifications are accommodations to work areas, tools, processes and appliances to increase the accessibility and function at the place of employment.

(b) The counselor will address any concerns of the individual prior to making a referral to the rehabilitation engineer. Any identified concerns must be included in the referral information. The counselor will make the employer aware of the scope of the worksite assessment by the rehabilitation engineer.

(c) If the rehabilitation engineer recommends adaptive equipment, products, or worksite accommodations, the counselor may request that the employer provide the products or modifications as a comparable benefit.

(d) The counselor or employer may utilize the rehabilitation engineer to coordinate installation of employer-provided assistive technology.

Rulemaking Authority 413.22 FS. Law Implemented 413.24, 413.28, 413.731 FS. History–New_________.

 

6A-25.016 Rehabilitation Technology Services.

(1) Definitions.

(a) “Accessible vehicle” means an ADA-compliant, original equipment manufacturer vehicle, or an original equipment manufacturer vehicle subsequently made ADA-compliant prior to delivery, or an existing vehicle as modified to reasonably accommodate an individual’s needs.

(b) “Driver evaluation” means an assessment of an individual’s abilities to drive a vehicle safely, to determine what training needs exist, and if vehicle modification, adaptive equipment or automotive equipment is necessary to enable the individual to drive.

(c) “Driver training” means instruction to teach an individual to drive a vehicle so that the individual will be able to obtain or retain a driver’s license.

(d) “Used equipment” means any equipment that has previously been sold to an individual or utilized as a demonstration product. The division will not purchase used equipment or reimburse any portion of costs towards the equipment, where a sale or delivery has occurred prior to authorization of services.

(2) Scope of Services. The division shall provide appropriate rehabilitation technology services, including consultation with a rehabilitation engineer, that are necessary for the applicant or eligible individual to participate in division services, assessments or achievement of an employment outcome. Prior to providing repairs to rehabilitation technology, the division shall determine whether maintaining equipment or replacement of equipment is appropriate.

(3) Vehicles and Driver Training.

(a) A driver evaluation by a driving evaluator will be obtained to determine the individual’s functional capacities to drive and need for modifications and adaptive equipment. The driving evaluator and rehabilitation engineer will produce final specifications for modifications.

(b) A driver training specialist will provide driver training to insure the individual’s and the public’s safety.

(c) Provision of accessible vehicles shall be considered only after every other transportation option has been explored and only after it has been determined that provision of an accessible vehicle is the most cost efficient and appropriate approach for the client and the division. The division shall not authorize provision of an accessible vehicle when the individual can effectively utilize public transportation and other means of transportation.

Rulemaking Authority 413.22 FS. Law Implemented 413.24, 413.28, 413.30, 413.731 FS. History–New_________.

 

6A-25.017 Case Closure.

(1) A case shall be closed when the individual has achieved a meaningful employment outcome, is determined ineligible, is not available, declines further service, or when the individual’s actions or inactions materially interferes with providing services.

(2) Successfully Rehabilitated. For an individual to be considered successfully rehabilitated, the individual must have been:

(a) Determined to be eligible;

(b) Provided an assessment for determining eligibility and vocational rehabilitation needs;

(c) Provided services from the division in accordance with the Individualized Plan for Employment (IPE); and

(d) Determined to have achieved and maintained a meaningful employment outcome for at least ninety (90) days.

(3) Closure for Reasons Other Than Rehabilitated. An individual’s case record may also be closed for the following reasons:

(a) The individual has moved without a forwarding address, cannot be located or contacted, is otherwise unavailable, or has left the state and shows no intentions of continuing in their vocational rehabilitation program;

(b) The individual’s mental or physical disability is too severe for the individual to benefit from vocational rehabilitation services in terms of employment;

(c) The individual chooses not to participate or continue in his or her vocational rehabilitation program;

(d) Death;

(e) The individual has entered an institution and will be unavailable to participate in a vocational rehabilitation program for an indefinite or considerable period of time. Institutions include, hospitals, nursing homes, prisons and jails, and treatment centers;

(f) The individual needs services that are more appropriately attained elsewhere. Transfer to the other agency indicates that appropriate referral information is forwarded to the other agency so that agency may provide services more effectively;

(g) The individual’s actions or inactions make it impossible to begin or continue a vocational rehabilitation program. Examples of actions or inactions that materially interfere with providing services include:

1. Unreasonable failure to sign an IPE or an amendment to an IPE, or violations of the IPE;

2. Continued unavailability or continued failure to keep scheduled appointments;

3. Repeated failure to comply with reasonable requests for diagnostic assessments; or

4. Threatening bodily harm to division employees or destruction of division property.

(h) The individual is not eligible for vocational rehabilitation services because no physical or mental impairment exists;

(i) The individual is not eligible for vocational rehabilitation services because his or her physical or mental impairment does not constitute a substantial impediment to employment;

(j) The individual may have benefited from the provision of supported employment services but no source of extended services was available;

(k) The individual received services and was placed in a non-integrated setting for a public or non-profit organization; or

(l) Other reasons as appropriate in the circumstances.

(4) Post-Employment Closures. The division may close the case of an individual to whom the division has provided post-employment services and who has achieved employment thereby, or for other appropriate reason.

Rulemaking Authority 413.22 FS. Law Implemented 413.24, 413.28, 413.30, 413.371, 413.401, 413.731 FS. History–New_________.

 

Editorial Note: Formerly 38J-1.007.

 

6A-25.018 Recovery From Third Parties.

(1) It shall be the policy of the division to seek reimbursement in full for all funds expended for vocational rehabilitation and related services from all parties liable therefor under Chapter 413, Florida Statutes. Third parties shall include first-party insurers and the Social Security Administration.

(2) The division shall seek the recovery of monies spent on behalf of an individual from a third party:

(a) Whenever a third party is liable for the payment of such services;

(b) From the individual if the individual has already received third-party payments;

(c) From the provider of the services if the provider recovers from the individual or a third party on behalf of the individual.

(3) When there is a possibility of a liable third party, the counselor, with the assistance of the individual, shall complete Form DVR-004, Subrogation Worksheet, as incorporated by reference in Rule 6A-25.019, F.A.C. The division shall request that the individual read and sign Form DVR-004, Subrogation Worksheet. Services to the individual provided through the division shall not be contingent upon the signing of this worksheet nor shall the subrogation rights of the division be contingent upon the individual signing the worksheet.

(4) The division may either file a lien meeting the requirements of Section 413.445, Florida Statutes, or notify the individual’s attorney by letter of the division’s right to subrogation. The failure of the division to file a lien or notify the individual’s attorney in writing shall not affect the division's subrogation rights.

(5) If the division receives a third party payment on either a pending Social Security Disability Benefits (SSDI) or Supplemental Security Income (SSI) claim or for which reimbursement has been received, then this shall be reported to the Social Security Administration.

(6) If the division has paid a vendor for services and the vendor is paid for those services by a third party, the vendor shall reimburse the division.

(7) If a third party policy only partially pays or a co-payment deductible must be paid, the division may supplement the third party payment or the co-payment deductible. The supplement to third party insurance or co-payment/deductible must be documented by the insurance carrier or vendor and the division shall not authorize an amount in excess of the division's maximum allowed fee.

(8) If a vendor will not accept Medicaid or Medicare, the division may pay the vendor for services and recover from Medicaid.

(9) Under special circumstances, where undue financial hardship would result to the individual, the division may consider, in its sole discretion, whether to seek reimbursement or to seek reimbursement for less than all of such funds expended. Under such circumstances, the division shall consider the following factors in determining whether to seek less than full or no reimbursement:

(a) The amount of reimbursement being offered by any party liable therefor;

(b) Cost to the division of services rendered to the individual;

(c) Types of services rendered to the individual;

(d) Employment status of the individual;

(e) Cost to the individual of living independently;

(f) Additional liens against the individual resulting from medical or rehabilitation services provided to such individual;

(g) Whether any other lienors have reduced their liens;

(h) Whether any attorney representing the individual has reduced his/her fee;

(i) Other sources of income available to the individual; and

(j) The cost effectiveness of pursuing the recovery.

(10) The division shall have the sole discretion, after consideration of such factors, to reduce or waive any claims the division may have under Section 413.445, Florida Statutes.

Rulemaking Authority 413.22, 413.445 FS. Law Implemented 413.445 FS. History–New_________.

 

Editorial Note: Formerly 38J-1.001.

 

6A-25.019 Forms and Documents.

The following forms and documents are incorporated by reference into this rule, to become effective on ______, and may be obtained from the Division of Vocational Rehabilitation, 2002 Old St. Augustine Road, Building A, Tallahassee, FL 32399-0696:

(1) Form DVR-001, Department of Education, Division of Vocational Rehabilitation, Vehicle Modification Consumer Acknowledgment (http://www.flrules.org/Gateway/reference.asp?No=Ref-00642), (rev. 6/18/2007);

(2) Form DVR-002, Department of Education, Division of Vocational Rehabilitation, Home Modification Consumer Acknowledgment (http://www.flrules.org/Gateway/reference.asp?No=Ref-00643), (rev. 6/18/2007);

(3) Form DVR-003A, Florida Department of Education, Division of Vocational Rehabilitation, Referral/Application for Vocational Rehabilitation Services (http://www.flrules.org/Gateway/reference.asp?No=Ref-00644), (rev. 05/10);

(4) Form DVR-003B, Florida Department of Education, Division of Vocational Rehabilitation, Referral/Application for Vocational Rehabilitation Services, Spanish (http://www.flrules.org/Gateway/reference.asp?No=Ref-00645), (rev. 05/10); and

(5) Form DVR-004, Subrogation Worksheet (http://www.flrules.org/Gateway/reference.asp?No=Ref-00647).

Rulemaking Authority 413.22 FS. Law Implemented 413.24, 413.28, 413.30, 413.32, 413.731 FS. History–New_________.

 

NAME OF PERSON ORIGINATING PROPOSED RULE: Bill Palmer, Director, Division of Vocational Rehabilitation

NAME OF AGENCY HEAD WHO APPROVED THE PROPOSED RULE: Gerard Robinson, Commissioner, Department of Education

DATE PROPOSED RULE APPROVED BY AGENCY HEAD: September 27, 2011

DATE NOTICE OF PROPOSED RULE DEVELOPMENT PUBLISHED IN FAW: October 15, 2010