Section 17-401.1-7 - Assessment for determining eligibility and priority for services(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;(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.Haw. Code R. § 17-401.1-7
[Eff AUG 13 2007] (Auth: HRS §§ 347-4, 348-3, 348-6; 29 U.S.C. §§705, 721, 722, 723; 34 C.F.R. §§361.42, 361.47) (Imp: HRS §§ 347-4, 348-3, 348-6; 29 U.S.C. §§705, 721, 722, 723; 34 C.F.R, §§361.42, 361.47 )