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Issue Alert - 10-01-01

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Date:

Jan 05, 2010

Program Area:

Family Independence Program (FIP)

Issue Summary:

DHS has revised its policy and procedures on exemptions (deferrals) from Jobs Education Training (JET) requirements for persons with disabilities; policy still has problems

Persons Affected:

FIP applicants or recipients with disabilities, especially those who have cognitive or learning disabilities; chronic and uncontrolled mental illness, or physical problems limiting ability to do routine manual labor

For More Information:

Center for Civil Justice 320 S. Washington, 2nd Floor Saginaw, MI 48607 (989) 755-3120, (800)724-7441 Fax: (989) 755-3558 E-mail: info@ccj-mi.org

Michigan Poverty Law Program 611 Church Street, Suite 4A Ann Arbor, MI 48104-3000 (734) 998-6100 (734) 998-9125 Fax


Background

Most adult FIP applicants and recipients (and some teens not in school) must participate in work-related activities through the Jobs Education and Training (JET) program.  Under state law, FIP applicants or recipients are exempt from participation in JET if they are “suffering from a physical or mental impairment that meets federal supplemental security income disability standards, except that no minimum duration is required”.  Under new subsections effective April 2007 (when the penalties for noncompliance with JET became much more damaging) the following individuals also are exempt:

1.  An individual with low intellectual capacity or learning disabilities that impede comprehension and prevent success in acquiring basic reading, writing, and math skills, including, but not limited to, an individual with an intelligence quotient less than 80. (Coded by DHS as LI)

2.  An individual with documented chronic mental health problems that cannot be controlled through treatment or medication. (Coded by DHS as CM)

3.  An individual with physical limitations on his or her ability to perform routine manual labor tasks, including, but not limited to, bending or lifting, combined with intellectual capacity or learning disabilities. (Coded by DHS as PL)

Individuals in these three new groups do not have to prove that their disabilities meet Supplemental Security (SSI) disability standards.  MCLA 400.57f(3)(i)(V) – (vii).

Although these exemptions were effective in April 2007, DHS has not implemented them.  In October 2009, DHS amended its policy to say that individuals in these three groups would be referred to Michigan Rehabilitation Services (MRS) and the DHS Medical Review Team (MRT) to determine whether they should be deferred from JET.  However, the MRT was only instructed to review whether individuals met the SSI standards.  MRT was not instructed or authorized to defer individuals who are in one of the three groups listed above.

What's Happening?

 

DHS has issued revised policy on deferrals from JET, effective January 1, 2010, which appears to be an attempt to (finally) implement the statutory exemptions.  Unfortunately, the policy does not clearly set forth the rights and obligations of clients and the procedures to be followed by DHS caseworkers and still does not ensure that clients will be exempted if they meet the criteria for one of the three categories. 

The bulletin announcing the new policy http://www.mfia.state.mi.us/olmweb/ex/BP-2010-001.pdf and the policy itself http://www.mfia.state.mi.us/olmweb/ex/bem/230A.pdf are available online.  (DHS bulletins and policy manuals are available on-line at http://www.mfia.state.mi.us/olmweb/ex/html/ or through a link at www.mplp.org).

 

DHS Central office has confirmed that caseworkers are supposed to refer all cases involving possible deferral under these categories to the DHS Medical Review Team (MRT) for a decision on whether they qualify for a “Long Term Incapacity” (coded as “IN”) deferral based on SSI disability standards, EVEN IF THE CLIENT DOES NOT HAVE A DOCTOR’S STATEMENT SAYING THE CLIENT IS UNABLE TO WORK.   BEM 230A p. 12.  (Note: DHS L Letter 09-02 announced that DHS stopped sending clients to Michigan Rehabilitation Services for “consultation” before they are reviewed by MRT.)    At present, MRT will NOT look at whether the client should be deferred under the LI, CM, or PL categories if the client’s mental or physical condition does not meet SSI disability standards.   The caseworker must review to see if LI,CM, or PL criteria are met after the MRT denies a deferral under the In category.   (This process may change in the future.)

 

DHS Central Office indicates the caseworker should automatically proceed with a review for a possible deferral under the LI/CM/PL categories if it appears the client should be deferred on one of those bases, although the policy seems to indicate the client must submit new or additional information after the MRT denies a deferral for long term incapacity (IN), BEM 230A p. 16

 

Under the revised policy, caseworkers should assist clients in gathering and should purchase necessary testing to verify exemptions under these categories,  BEM 230A p. 16.     Advocates also should encourage caseworkers to look follow the DHS policy on Accommodations under the Americans with Disabilities Act (ADA) and Section 504 of the Rehabilitation Act, which has strong language (a) requiring DHS to offer assessment when screening shows possible disabilities and (b) requiring DHS to treat any indication that a client is having difficulty because of a disability as a request for accommodation.  See AHJ 1313 p. 6-9 (available online at http://www.mfia.state.mi.us/olmweb/ex/ahj/1313.pdf).

 

The revised policy also provides some standards and guidance regarding the types of information needed to verify that individuals are exempt under the “new” categories. For chronic mental illness, policy now requires verification provided by the client indicating they are in treatment and/or on medication for a chronic mental health issue. A psychiatrist must verify that the client is unable to participate in any employment-related activities at this time. As a condition of eligibility continued treatment must be reviewed at redetermination.   BEM 230A p. 16.  For learning disabilities or cognitive impairments, policy states,

IQ testing or an assessment completed by the MWA, MRS or other entity certified to perform the assessment(s). When an assessment indicates the client has an IQ of less than 80 or is performing at less than a sixth grade level in basic math, reading or writing skills the client

IQ test results use the full-scale IQ results. The test must state it is a valid measure of the client’s mental skills. IQ testing results are always valid after an individual turns age 16 years, 7 months. New verifications are not required after age 16 years, 7 months as IQ levels do not change over time.  Id.   For individuals with disabilities that limit their ability to do manual labor, the client must

·   Indicat[e] they have a physical limitation that hinders their ability to perform routine manual labor tasks, and

·   Provid[e] verification from an MD or a DO that states the client’s disability will last longer than 90 days.

Id. 

 

The revised policy sets forth activities that individuals exempted under these categories must engage in.  For persons deferred based on chronic mental illness, continued participation in treatment is required.  For persons exempt based on learning or cognitive disabilities, the client must actively participate in either

• School attendance or participation in a community based literacy program or tutoring provided using Direct Support Services (DSS) if available locally, or

• FSS [Family Support Services] approved activities including use of the state-wide counseling contract.

 Id.  Persons exempt based on limitations on performing manual labor must participate in any prescribed medical treatment and must participate in assigned Family Support Services activities.   Advocates should ensure that clients are assigned to appropriate programs and activities that accommodate their disabilities. 

CCJ will continue to advocate for policy that fully implements the state law and ensures that persons with cognitive, learning, and mental disabilities have an equal opportunity to benefit from the FIP program.  

What Should Advocates Do?

 

Help clients request exemption/deferral from JET if they meet the criteria for exemption.

Help clients gather verification, or request DHS help with verification, of disabilities that should make then exempt from JET.

Contact CCJ if you have clients who are not properly considered for exemption/deferral under the three categories because they did not repeat their request for exemption (or indicate they needed accommodation) after the MRT denied them a deferral based on Long term Incapacity.

What Should Clients Do?

  

Seek legal advice if you are assigned to JET and are unable to successfully participate because of disabilities.

Seek legal advice immediately if you are denied or terminated from FIP.   

Request a hearing if you believe the decision was incorrect.  Assistance will continue at current levels if DHS receives your original, signed hearing BEFORE the date the FIP is supposed to terminate (usually 12 days after the date DHS issues the termination notice).

Finding Help

Most legal aid and legal services offices handle these types of cases, and they do not charge a fee.

You can locate various sources of legal and related services, including the free legal aid office that serves your county, at MichiganLegalAid.org.

You can also look in the yellow pages under "attorneys" or call the toll-free lawyer referral number, (800) 968-0738.