32 Miss. Code. R. 21-5-5.4.1

Current through December 10, 2024

Section 32-21-5-5.4.1 - Determining If the Applicant Is an Individual With a Disability

To be an individual with a disability, an applicant must be:

1. an individual who has a physical or mental impairment which for that individual constitutes or results in a substantial impediment to employment; and,

2. who requires, in terms of an employment outcome, specific vocational rehabilitation services.

The 1998 Amendments have created two presumptions to facilitate the process of determining whether an applicant is an individual with a disability. Section 102(a)(3)(A) of the 1998 Rehabilitation Act Amendments states that an individual who has been determined to have a disability, or to be statutorily blind pursuant to either Title II or Title XVI of the Social Security Act shall be considered:

1. to be an individual with a significant disability under Section 7(21)(A) of the 1998 Rehabilitation Act Amendments; and,

2. presumed to be eligible for vocational rehabilitation services under this title (provided that the individual intends to achieve a specific employment outcome consistent with the unique strengths, resources, priorities, concerns, abilities, capabilities, career interests, and informed choice of the individual) unless the Agency involved can demonstrate by clear and convincing evidence documented in the case file that such individual is incapable of benefiting in terms of an employment outcome from specific vocational rehabilitation services due to the severity of the disability of the individual.

Thus, valid documentation from the Office of Disability Determination Services or the Social Security Administration is sufficient to show that an applicant meets the first part of the definition of an individual with a disability. No additional tests or procedures are used to assess "intent" of applicants who are allowed SSDI beneficiaries and SSI recipients that would hinder speedy access to vocational rehabilitation services.

Section 102(a)(4) of the 1998 Rehabilitation Act Amendments creates a presumption that determinations of the existence of a disability, made by officials of other agencies, may be presumed to satisfy one or more factors leading to the determination that an individual is an individual with a disability or an individual with a significant disability as defined in the 1998 Amendments. "Other agencies" include but are not limited to:

* State Department of Education - determinations of special

* education status i.e., learning disabilities, and the like;

* State Department of Mental Health - mental illness or

* retardation;

* Workmen's Compensation Commission - findings of disability;

* Medicare/Medicaid - findings of disability;

* personal physicians - medical histories;

* advocates and advocacy groups;

* referring agencies; and,

* documentation from any entity that includes findings of disability as part of its services.

A determination of the existence of a disability by another agency may be sufficient evidence to show that an applicant is an individual with a disability, or such a determination may provide a starting point from which a preliminary assessment can be conducted to obtain any additional information necessary to show that an applicant is an individual with a disability.

Regardless of the results of the assessments and/or presumptions above to determine if an applicant has a disability which constitutes a substantial impediment to employment, a qualified rehabilitation counselor must still determine if the applicant intends to achieve an employment outcome in an integrated setting and requires specific vocational rehabilitation services in terms of an employment outcome.

Substantial Impediment to Employment means that a physical or mental impairment (in light of medical, psychological, vocational, educational, or other related factors) inhibits an individual's occupational performance by impeding the individual's ability to prepare for, secure, retain, or regain employment consistent with his or her unique strengths, resources, priorities, concerns, abilities, capabilities, career interests, and informed choice. A substantial impediment to employment exists when the physical or mental impairment results in a functional limitation or limitations that:

1. require the individual to modify or change his or her regular occupation;

2. make it difficult for the individual to prepare for, secure, retain, or regain employment;

3. cause the refusal or reluctance of the former employer to re-employ the individual because of the impairment;

4. necessitate additional preparation in order to perform the occupation;

5. result in the deterioration of skills or of performance in the occupation;

6. could result in termination of employment as the impairment progresses;

7. reflect a direct relationship between the impairment and the individual's employability; or,

8. continue to exist when an individual is employed, but prevent that individual from functioning at an occupational level consistent with his/her unique strengths, resources, priorities, concerns, abilities, capacities, career interests, and informed choice

Functional Limitations - To be an impediment to employment, a physical or mental impairment must be assessed in terms of the limitations that impairment presents to an individual's ability to function vocationally - i.e., to prepare for, secure, retain, or regain competitive employment.

Such assessment may include, to the degree needed to make such a determination, an assessment of the personality, interests, career choices, interpersonal skills, intelligence and related functional capacities, educational achievements, work experience, vocational aptitudes, personal and social adjustments, and employment opportunities of the individual, and the medical, psychiatric, psychological, and other pertinent vocational, educational, cultural, social, recreational, and environmental factors, that affect the employment and rehabilitation needs of the individual;

Such assessment may also include, to the degree needed, an appraisal of the patterns of work behavior of the individual and services needed for the individual to acquire occupational skills and to develop work attitudes, habits, tolerance, and social and behavior patterns necessary for successful job performance, including the utilization of work in real job situations to assess and develop the capacities of the individual to perform adequately in a work environment.

32 Miss. Code. R. 21-5-5.4.1