Hawaii Administrative Rules
Title 17 - DEPARTMENT OF HUMAN SERVICES
Department of Human Services
Chapter 401.1 - VOCATIONAL REHABILITATION SERVICES
Section 17-401.1-7 - Assessment for determining eligibility and priority for services
Universal Citation: HI Admin Rules 17-401.1-7
Current through August, 2024
(a) The division shall conduct an assessment, in the most integrated setting possible and consistent with the individual's needs and informed choice, to determine the eligibility of all individuals applying for VR services, and the individual's priority for services. Integrated setting means a setting typically found in the community in which applicants or eligible individuals interact with non-disabled individuals other than those who provide them services.
(b) The assessment must be conducted in accordance with the following provisions:
(1)
The determination of an applicant's eligibility for VR services must be based
only on the following basic requirements:
(A)
A determination by qualified personnel that the applicant has a physical or
mental impairment.
(B) A
determination by qualified personnel that the applicant's physical or mental
impairment constitutes or results in a substantial impediment to employment for
the applicant.
(C) A determination
by a qualified vocational rehabilitation counselor employed by the division
that the applicant requires VR services to prepare for, secure, retain, or
regain employment consistent with the applicant's unique strengths, resources,
priorities, concerns, abilities, capabilities, interests, and informed
choice.
(D) A presumption, in
accordance with paragraph (b)(2), that the applicant can benefit in terms of an
employment outcome from the provision of VR services.
(2) The division must presume that an
applicant who meets the eligibility requirements in paragraph (b)(1)(A) and (B)
can benefit in terms of an employment outcome unless it demonstrates, based on
clear and convincing evidence as defined in subparagraph (e)(1)(A), that the
applicant is incapable of benefiting in terms of an employment outcome from VR
services due to the severity of the applicant's disability.
(3) The division shall presume the
eligibility of Social Security recipients and beneficiaries for VR services:
(A) Any applicant who has been determined
eligible for Social Security benefits under title II or title XVI of the Social
Security Act is:
(i) Presumed eligible for VR
services under paragraphs (b)(1) and (2); and
(ii) Considered an individual with a
significant disability as defined in section 17-401.1-2.
(B) If an applicant for VR services asserts
to be eligible for Social Security benefits under title II or title XVI of the
Social Security Act (and therefore presumed eligible for VR services under this
paragraph), but is unable to provide appropriate evidence, such as an award
letter, to support that assertion, the division must verify the applicant's
eligibility under title II or title XVI of the Social Security Act by
contacting the Social Security Administration. This verification must be made
within a reasonable period of time that enables the division to determine the
applicant's eligibility for VR services within 60 days of the individual
submitting an application for services in accordance with section 17-401.1-4(b)
(2).
(4) Any eligible
individual, including an individual whose eligibility for VR services is based
on the individual being eligible for Social Security benefits under title II or
title XVI of the Social Security Act, must intend to achieve an employment
outcome that is consistent with the individual's strengths, resources,
priorities, concerns, abilities, capabilities, interests, and informed choice.
(A) The division is responsible for informing
individuals, through its application process for VR services, that individuals
who receive services under the program must intend to achieve an employment
outcome.
(B) The applicant's
completion of the application process for VR services is sufficient evidence of
the individual's intent to achieve an employment outcome, and no additional
demonstration on the part of the applicant is required for purposes of
satisfying this intent.
(5) Nothing in this section, including
paragraph (b)(3)(A), is to be construed to create an entitlement to any VR
service,
(c) The following factors are prohibited in determining eligibility under this section:
(1) The division shall not impose a duration
of residence requirement that excludes from services any applicant who is
present in the State.
(2) The
division must also ensure that:
(A) No
applicant or group of applicants is excluded or found ineligible solely on the
basis of the type of disability; and
(B) The eligibility requirements are applied
without regard to the:
(i) Age, gender, race,
color, or national origin of the applicant;
(ii) Type of expected employment
outcome;
(iii) Source of referral
for VR services; and
(iv)
Particular service needs or anticipated cost of services required by an
applicant or the income level of an applicant or applicant's family.
(3) No additional tests
or procedures, other than the individual applying for services, shall be used
to assess the "intent" of applicants who are allowed SSDI benefits or SSI
payments when they apply for services.
(d) Except as provided in subsection (e), the division:
(1) Must base its determination of
each of the basic eligibility requirements in paragraph (b) (1) on:
(A) A review and assessment of existing data,
including counselor observations, education records, information provided by
the individual or the individual's family, particularly information used by
education officials, and determinations made by officials of other agencies;
and
(B) To the extent existing data
do not describe the current functioning of the individual or are unavailable,
insufficient, or inappropriate to make an eligibility determination, an
assessment of additional data resulting from the provision of VR services,
including trial work experiences, assistive technology devices and services,
personal attendant services, and any other support services that are necessary
to determine whether an individual is eligible; and
(2) Must base its presumption under (b)(3)(A)
that an applicant who has been determined eligible for Social Security benefits
under title II and title XVI of the Social Security Act satisfies each of the
basic eligibility requirements in paragraph (b)(1) on determinations made by
the Social Security Administration.
(e) The division must conduct trial work experiences for individuals with significant disabilities to demonstrate with clear and convincing evidence that such individuals are incapable of benefiting from VR services in terms of an employment outcome.
(1) Prior to any determination that an
individual with a disability is incapable of benefiting from VR services in
terms of an employment outcome because of the severity of the individual's
disability, the division must conduct an exploration of the individual's
abilities, capabilities, and capacity to perform in realistic work situations
to determine whether or not there is clear and convincing evidence to support
such a determination.
(A) Clear and
convincing evidence means that the division shall have a high degree of
certainty before concluding that an individual is incapable of benefiting from
services in terms of an employment outcome. The "clear and convincing" standard
constitutes the highest standard used in our civil system of law and is to be
individually applied on a case-by-case basis. The term "clear" means
unequivocal. Given these requirements, a review of existing information, such
as an intelligence test result alone, generally would not provide or constitute
clear and convincing evidence. Clear and convincing evidence might include a
description of assessments, including situational assessments, from service
providers who have concluded that they would be unable to meet the individual's
needs due to the severity of the individual's disability.
(B) The demonstration of "clear and
convincing evidence" must include, if appropriate, a functional assessment of
skill development activities, with any necessary supports (including assistive
technology), in real life settings.
(C) Employment outcome means entering or
retaining full-time or, if appropriate, part-time competitive employment in the
integrated labor market; satisfying the vocational outcome of supported
employment; or satisfying any other vocational outcome determined to be
appropriate by the Secretary of the U.S. Department of Education (including
satisfying the vocational outcome of self-employment, telecommuting, or
business ownership), in a manner consistent with the Rehabilitation Act, as
amended.
(2) The
division must develop a written plan to assess periodically the individual's
abilities, capabilities, and capacity to perform in work situations through the
use of trial work experiences, which must be provided in the most integrated
setting possible, consistent with the informed choice and rehabilitation needs
of the individual.
(A) Trial work experiences
include supported employment, on-the-job training, and other experiences using
realistic work settings.
(B) Trial
work experiences must be of sufficient variety and over a sufficient period of
time for the division to determine that:
(i)
There is sufficient evidence to conclude that the individual can benefit from
the provision of VR services in terms of an employment outcome; or
(ii) There is clear and convincing evidence
that the individual is incapable of benefiting from VR services in terms of an
employment outcome due to the severity of the individual's
disability.
(C) The
division must provide appropriate supports, including assistive technology
devices and services and personal attendant services, to accommodate the
rehabilitation needs of the individual during the trial work
experiences.
(f) The division shall provide extended evaluation for certain individuals with significant disabilities.
(1) Under limited circumstances if an
individual cannot take advantage of trial work experiences or if options for
trial work experiences have been exhausted before the division is able to make
the determinations described in paragraph (e)(2)(B), the division must conduct
an extended evaluation to make these determinations.
(2) During the extended evaluation period, VR
services must be provided in the most integrated setting possible, consistent
with the informed choice and rehabilitation needs of the individual.
(3) During the extended evaluation period,
the division must develop a written plan for providing services necessary to
make a determination under paragraph (e)(2)(B).
(4) During the extended evaluation period,
the division provides only those services that are necessary to make the
determinations described in paragraph (e)(2)(B) and terminates extended
evaluation services when the division is able to make the
determinations.
(g) Eligibility for supported employment services shall be based on the following:
(1) The individual is eligible for VR
services in accordance with subsection (b);
(2) The individual meets the three criteria
of a most significantly disabled individual in accordance with section
17-401.1-5;
(3) The individual is
one for whom competitive employment has not traditionally occurred or has been
interrupted or intermittent as a result of a significant disability;
and
(4) The individual requires
intensive supported employment services or extended services for a period of
time not to extend beyond 18 months, unless under special circumstances the
eligible individual and the VR counselor jointly agree to extend the time in
order to achieve the employment outcome identified in the individualized plan
for employment.
(h) Where an applicant is known to be an alien or where there is reason to question an applicant's alien status, the applicant shall be requested to present proper credentials or clarify status with the U.S. Immigration and Naturalization Service (INS) in order for the division to determine eligibility for services.
(1) Immigrant aliens admitted for purposes of
permanent residence who are required to register prior to arrival and must
report change of address, shall be expected to comply with the duly-executed
registration. Where registration has not been maintained, the division shall
request the person to clear up the person's status. Where registration has been
maintained, the division shall proceed with determination of
eligibility.
(2) Non-immigrant
aliens admitted for a particular purpose and time period are expected to return
to their country upon completion of such purpose or time period. Examples
include:
(A) Visiting for business or
pleasure;
(B) Crewman of vessels or
aircraft;
(C) Students;
(D) Representatives of international
organizations; and
(E) Ambassadors
and career diplomatic and consular officers.
(3) The division shall request that the
individual provide documentation regarding the persons status, and whether work
is permitted under conditions of the person's visa in order to determine
eligibility for services. The person shall be informed that failure or refusal
to provide the requested documentation can result in termination of the
individual's application.
(A) Upon receipt of
appropriate documentation of the individual's alien status indicating that work
is permitted, the division shall proceed in determining the individual's
eligibility for services.
(B) If
the individual fails or refuses to provide the requested documentation, the
division may terminate the individual's application for reasons other than
ineligibility (e.g. failure to cooperate, refused service).
(C) If the individual provides documentation
of the individual's alien status indicating that work is not permitted, the
division shall consider this documentation as clear and convincing evidence
that the individual cannot benefit from VR services in terms of an employment
outcome so long as the individual is not permitted to work, and is therefore
ineligible for VR services.
(D)
Illegal aliens are persons present without legal status. The division shall
request that the person provide proper credentials or clear identification of
status in order to reach an appropriate decision.
(i) If the individual fails or refuses to
provide the requested documentation, the division shall terminate the
individual's application for reasons other than ineligibility (e.g. failure to
cooperate, refused services).
(ii)
If the individual provides documentation of legal status indicating that work
is permitted, the division shall proceed in determining the individual's
eligibility for services,
(iii) If
the individual provides documentation of legal status indicating that work is
not permitted, the division shall consider this documentation as clear and
convincing evidence that the individual cannot benefit from VR services in
terms of an employment outcome so long as the individual is not permitted to
work, and is therefore ineligible for VR services,
(i) Once an individual has submitted an application for services, provided information necessary to initiate an assessment for determining eligibility and priority for services, and is available to complete the assessment, the division must determine the individual's eligibility within sixty calendar days, unless:
(1) Exceptional and unforeseen circumstances
beyond the control of the division preclude making an eligibility determination
within sixty calendar days and the individual agrees to a specific extension of
time; or
(2) The division is
exploring an individual's abilities, capabilities, and capacity to perform in
trial work experiences under subsection (e); or in extended evaluation under
subsection (f).
(j) If the division is operating under an order of selection for services, as provided in section 17-401.1-5, the division must base its priority assignments on:
(1) A review of the data that was developed
under paragraphs (d), and (e) or (f) to make the eligibility determination;
and
(2) An assessment of additional
data, to the extent necessary.
(k) Assessment services, for determining eligibility and priority for services, including assessment services under a trial work experience or extended evaluation to determine eligibility for services, are exempt from the comparable services and benefits provisions of section 17-401.1-13 and the personal resources provisions of section 17-401.1-14.
(l) If an applicant has been determined to be an eligible individual the division shall include documentation supporting that determination in the division's record of services for the individual in accordance with this section.
(m) If an individual with a significant disability requires an exploration of abilities, capabilities, and capacity to perform in realistic work situations through the use of trial work experiences or, as appropriate, an extended evaluation to determine whether the individual is an eligible individual, documentation supporting the need for, and the plan relating to, that exploration or, as appropriate, extended evaluation and documentation regarding the periodic assessments carried out during the trial work experiences or, as appropriate, the extended evaluation, shall be included in the division's record of services for the individual.
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