HAR §17-401.1-8
HAR §17-401.1-8. Determination of ineligibility
Cite as Haw. Code R. § 17-401.1-8
(a)
When the division determines that an applicant is
ineligible for VR services or determines that an
individual receiving VR services under an
individualized plan for employment is no longer
eligible for services, the division must:
(1)
Make the determination only after providing
an opportunity for full consultation with
the individual or, as appropriate, with the
individual’s representative;
(2)
Inform the individual in writing,
supplemented as necessary by other
appropriate modes of communication
consistent with the informed choice of the
individual, of the ineligibility
determination, including the reasons for
47
§17-401.1-8
that determination, the requirements under
this section, and the means by which the
individual may express and seek remedy for
any dissatisfaction, including the
procedures for review of division personnel
determinations in accordance with section
17-400.1-5;
(3)
Provide the individual with a description of
services available from the Client
Assistance Program of the Hawaii Disability
Rights Center and information on how to
contact that program;
(4)
Refer the individual:
(A)
To other programs that are part of the
One-Stop service delivery system under
the Workforce Investment Act that can
address the individual’s training or
employment-related needs; or
(B)
To local extended employment providers
if the ineligibility determination is
based on a finding that the individual
is incapable of achieving an employment
outcome as defined in section 17-401.1-
2.
(5)
Review within 12 months and annually
thereafter if requested by the individual
or, if appropriate, by the individual’s
representative any ineligibility
determination that is based on a finding
that the individual is incapable of
achieving an employment outcome. The review
need not be conducted in situations in which
the individual has refused it, the
individual is no longer present in the
State, the individual’s whereabouts are
unknown, or the individual’s medical
condition is rapidly progressive or
terminal.
(b)
The division may not close an applicant’s
record of services prior to making an eligibility
determination unless the applicant declines to
48
§17-401.1-9
participate in, or is unavailable to complete, an
assessment for determining eligibility and priority
for services, and the division has made a reasonable
number of attempts to contact the applicant or, if
appropriate, the applicant’s representative to
encourage the applicant’s participation.
(c)
If an applicant or eligible individual
receiving services under an IPE has been determined to
be ineligible, the division shall include
documentation supporting that determination in the
division’s record of services for the individual in
accordance with the requirements of this section. If
closure of the division’s record of services for the
individual is based on reasons other than
ineligibility, the division shall include
documentation that describes the reason for closure,
in the division’s record of services for the
individual, including, as appropriate, documentation
that the division has satisfied the requirements of
paragraph (b). [Eff
AUG 13 2007
] (Auth: HRS
§§347-4, 348-3, 348-6; 29 U.S.C. §§709, 722; 34 C.F.R.
§§361.43, 361.44, 361.47) (Imp: HRS §§347-4, 348.3,
348-6; 29 U.S.C. §§709, 722; 34 C.F.R. §§361.43,
361.44, 361.47)
§17-401.1-9 Certification of eligibility or
ineligibility. (a) The division shall certify on the
appropriate forms developed by the division, that the
basic conditions for determining eligibility or
ineligibility for VR services have been met.
(1)
After or simultaneously with acceptance of
an applicant for VR services, the division
shall certify that the individual meets the
basic eligibility requirements for VR
services in accordance with section 17-
401.1-7.
(2)
After or simultaneously with acceptance of
an eligible individual, who is determined to
be an individual with a most significant
disability, for supported employment
49
§17-401.1-9
services, the division shall certify as an
addendum to the individual’s certification
of eligibility for VR services, that the
individual meets the eligibility
requirements for supported employment
services in accordance with sections 17-
401.1-7 and 17-401.1-31.
(3)
When an applicant for VR services fails to
meet the basic eligibility requirements for
VR services, or when an eligible individual
receiving services under an individualized
plan for employment is determined no longer
capable of achieving an employment outcome
due to the severity of the disability, based
on clear and convincing evidence, including
a demonstration of incapability following a
period of trial work experience or extended
evaluation, in accordance with section 17-
401.1-8, the division shall certify the
individual’s ineligibility for VR services.
(b) The division’s record of services for the
individual shall contain documentation supporting the
determination that an applicant or eligible individual
has been determined eligible or ineligible for VR
services, including the certification of eligibility
or ineligibility in support of such determination.
(c) All decisions affecting eligibility or
ineligibility for VR services shall be made by
authorized persons of the division and not delegated
to any other agency or individual. [Eff AUG 13 2007]
(Auth: HRS §§347-4, 348-3, 348-6; 29 U.S.C. §§705,
722; 34 C.F.R. §§361.42, 361.43, 361.47) (Imp: HRS
§§347-4, 348-3, 348-6; 29 U.S.C. §§705, 722; 34 C.F.R.
§§361.42, 361.43, 361.47)
§17-401.1-10 Development of the individualized
plan for employment. (a) The division shall ensure
that an individualized plan for employment (IPE)
meeting the requirements of this section and section
17-401.1-11 is developed and implemented in a timely
manner for each individual determined to be eligible
50
§17-401.1-10
for VR services or, if the division is operating under
an order of selection in accordance with section 17-
401.1-5, for each eligible individual to whom the
division is able to provide services, and that
services are provided in accordance with the
provisions of the IPE.
(b) The division must conduct an assessment for
determining VR needs, if appropriate, for each
eligible individual or, if the division is operating
under an order of selection, for each eligible
individual to whom the division is able to provide
services.
(1)
The purpose of this assessment is to
determine the employment outcome, and the
nature and scope of VR services to be
included in the IPE.
(2)
To the extent possible, the employment
outcome and the nature and scope of
rehabilitation services to be included in
the individual’s IPE must be determined
based on the data used for the assessment of
eligibility and priority for services under
section 17-401.1-7.
(3)
To the extent additional data are necessary
to make a determination of the employment
outcome and the nature and scope of VR
services to be included in the IPE of an
eligible individual, the division must
conduct a comprehensive assessment of the
unique strengths, resources, priorities,
concerns, abilities, capabilities,
interests, and informed choice, including
the need for supported employment services,
of the eligible individual. This
comprehensive assessment:
(A)
Is limited to information that is
necessary to identify the
rehabilitation needs of the individual
and to develop the IPE of the eligible
individual;
51
§17-401.1-10
(B)
Uses as a primary source of information
to the maximum extent possible and
appropriate and in accordance with
confidentiality requirements:
(i) Existing information obtained for
the purposes of determining the
eligibility of the individual and
assigning the priority for an
order of selection described in
section 17-401.1-5 for the
individual; and
(ii) Information that can be provided
by the individual and, if
appropriate, by the family of the
individual;
(C)
May include, to the degree needed to
make such a determination, an
assessment of the personality,
interests, 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; and
(D)
May 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, work habits, work tolerance,
and social and behavior patterns
necessary for successful job
performance, including the use of work
in real job situations to assess and
52
§17-401.1-10
develop the capacities of the
individual to perform adequately in a
work environment.
(c) The IPE must be designed to achieve a
specific employment outcome as defined in section 17-
401.1-2, that is selected by the individual consistent
with the individual’s strengths, resources,
priorities, concerns, abilities, capabilities,
interests, and informed choice.
(d) The division must provide the following
information to each eligible individual or, as
appropriate, the individual’s representative, in
writing and, if appropriate, in the native language or
mode of communication of the individual or the
individual’s representative:
(1)
Information on the available options for
developing the IPE, including the option
that an eligible individual or, as
appropriate, the individual’s representative
may develop all or part of the IPE:
(A)
Without assistance from the division or
other entity; or
(B)
With assistance from:
(i) A qualified vocational
rehabilitation counselor employed
by the division;
(ii) A qualified vocational
rehabilitation counselor who is
not employed by the division; or
(iii) Resources other than those in (i)
or (ii);
(2)
Additional information to assist the
eligible individual or, as appropriate, the
individual’s representative in developing
the IPE, including:
(A)
Information describing the full range
of components that must be included in
an IPE;
(B)
As appropriate to each eligible
individual:
53
§17-401.1-10
(i) An explanation of agency
guidelines and criteria for
determining an eligible
individual’s financial commitments
under an IPE;
(ii) Information on the availability of
assistance in completing division
forms required as part of the IPE;
and
(iii) Additional information that the
eligible individual requests or
the division determines to be
necessary to the development of
the IPE;
(3)
A description of the rights and remedies
available to the individual, including, if
appropriate, recourse to the processes
described in section 17-400.1-5; and
(4) A description of the availability of the
Client Assistance Program of the Hawaii
Disability Rights Center and information on
how to contact them.
(e) The division must ensure that:
(1)
The IPE is a written document prepared on
forms provided by the division;
(2)
The IPE is developed and implemented in a
manner that gives eligible individuals the
opportunity to exercise informed choice,
consistent with section 17-401.1-12 in
selecting:
(A)
The employment outcome, including the
employment setting;
(B)
The specific VR services needed to
achieve the employment outcome,
including the settings in which
services will be provided;
(C)
The entity or entities that will
provide the VR services; and
(D)
The methods available for procuring the
services;
(3)
The IPE is:
54
§17-401.1-10
(A)
Agreed to and signed by the eligible
individual or, as appropriate, the
individual’s representative; and
(B)
Approved and signed by a qualified VR
counselor employed by the division;
(4)
A copy of the IPE and a copy of any
amendments to the IPE are provided to the
eligible individual or, as appropriate, to
the individual’s representative, in writing
and, if appropriate, in the native language
or mode of communication of the individual
or, as appropriate, the individual’s
representative;
(5)
The IPE is reviewed at least annually by a
qualified VR counselor and the eligible
individual or, as appropriate, the
individual’s representative to assess the
eligible individual’s progress in achieving
the identified employment outcome;
(6)
The IPE is amended, as necessary, by the
individual or, as appropriate, the
individual’s representative, in
collaboration with a representative of the
division or a qualified VR counselor (to the
extent determined to be appropriate by the
individual), if there are substantive
changes in the employment outcome, the VR
services to be provided, or the providers of
VR services;
(7)
Amendments to the IPE do not take effect
until agreed to and signed by the eligible
individual or, as appropriate, the
individual’s representative and by a
qualified VR counselor employed by the
division; and
(8)
An IPE for a student with a disability
receiving special education services is
developed:
(A)
In consideration of the student’s IEP
(individualized education program); and
55
§17-401.1-10
(B)
In accordance with the plans, policies,
procedures, and terms of the
interagency agreement required under
section 17-400.1-13(a)(2).
(f)
The division must establish and implement
standards for the prompt development of IPEs for the
individuals identified under subsection (a), including
timelines that take into consideration the needs of
the individuals.
(g)
A copy of the IPE and any amendments must be
included in the division’s record of services for the
individual.
(h) Assessment services for determining VR needs
are exempt from the comparable services and benefits
provisions of section 17-401.1-13 and personal
resources provisions of section 17-401.1-14. [Eff
AUG 13 2007](Auth: HRS §§347-4, 348-3, 348-6; 29
U.S.C. §§705, 721, 722, 723; 34 C.F.R. §§361.5(b)(6),
361.45, 361.47) (Imp: HRS §§347-4, 348-3, 348-6; 29
U.S.C. §§705, 721, 722, 723; 34 C.F.R. §§361.5(b)(6),
361.45, 361.47)
§17-401.1-11 Content of the individualized plan
for employment. (a) Regardless of the approach in
section 17-401.1-10(d)(1) selected by an eligible
individual for developing the IPE, each IPE must
include the following mandatory components:
(1)
A description of the specific employment
outcome, as defined in section 17-401.1-2,
that is chosen by the eligible individual
that is consistent with the individual’s
unique strengths, resources, priorities,
concerns, abilities, capabilities, career
interests, and informed choice;
(2)
A description of the specific rehabilitation
services under section 17-401.1-6 that are:
(A)
Needed to achieve the employment
outcome, including, as appropriate, the
provision of assistive technology
devices, assistive technology services,
and personal attendant services,
56
§17-401.1-11
including training in the management of
those services; and
(B)
Provided in the most integrated setting
that is appropriate for the services
involved and is consistent with the
informed choice of the eligible
individual;
(3)
Timelines for the achievement of the
employment outcome and for the initiation of
services;
(4)
A description of the entity or entities
chosen by the eligible individual or, as
appropriate, the individual’s representative
that will provide the VR services and the
methods used to procure those services;
(5)
A description of the criteria that will be
used to evaluate progress toward achievement
of the employment outcome; and
(6)
The terms and conditions of the IPE,
including, as appropriate, information
describing:
(A)
The responsibilities of the division;
(B)
The responsibilities of the eligible
individual, including:
(i) The responsibilities the
individual will assume in relation
to achieving the employment
outcome;
(ii) If applicable, the extent of
the individual’s participation in
the cost of services in accordance
with section 17-401.1-14; and
(iii)
The responsibility of the
individual with regard to applying
for and securing comparable
services and benefits in
accordance with section 17-401.1-
13; and
(C)
The responsibilities of other entities
as the result of arrangements made
pursuant to the comparable services or
57
§17-401.1-11
benefits requirements in section 17-
401.1-13.
(b) For an eligible individual with a most
significant disability for whom an employment outcome
in a supported employment setting has been determined
to be appropriate, the IPE must:
(1)
Specify the supported employment services to
be provided by the division;
(2)
Specify the expected extended services
needed, which may include natural supports;
(3)
Identify the source of extended services or,
to the extent that it is not possible to
identify the source of extended services at
the time the IPE is developed, include a
description of the basis for concluding that
there is a reasonable expectation that those
sources will become available;
(4)
Provide for periodic monitoring to ensure
that the individual is making satisfactory
progress toward meeting the weekly work
requirement established in the IPE by the
time of transition to extended services;
(5)
Provide for the coordination of services
provided under an IPE with services provided
under other individualized plans established
under other Federal or State programs;
(6)
To the extent that job skills training is
provided, identify that the training will be
provided on site; and
(7)
Include placement in an integrated setting
for the maximum number of hours possible
based on the unique strengths, resources,
priorities, concerns, abilities,
capabilities, interests, and informed choice
of individuals with the most significant
disabilities.
(c) As determined to be necessary, the IPE for
each individual must contain statements concerning:
(1)
The expected need for post-employment
services prior to closing the record of
58
§17-401.1-12
services of an individual who has achieved
an employment outcome;
(2)
A description of the terms and conditions
for the provision of any post-employment
services; and
(3)
If appropriate, a statement of how post-
employment services will be provided or
arranged through other entities as the
result of arrangements made pursuant to the
comparable services or benefits requirements
in section 17-401.1-13.
(d) The IPE for a student with a disability who
is receiving special education services must be
coordinated with the individualized education program
(IEP) for that individual in terms of the goals,
objectives, and services identified in the IEP.
(e) The decision that an individual is not
capable of achieving an employment outcome and is no
longer eligible to receive services under an IPE shall
be made in accordance with the requirements in section
17-401.1-8. The decision, and the reasons on which
the decision is based, must be included as an
amendment to the IPE.
(f) A copy of the IPE and any amendments,
consistent with the requirements of this section,
shall be filed in the division’s record of services
for the individual.
(g) In the event that an individual’s IPE
provides for VR services in a non-integrated setting,
the division’s record of services for the individual
shall include a justification to support the need for
the non-integrated setting. [Eff AUG 13 2007
]
(Auth: HRS §§347-4, 348-3, 348-6; 29 U.S.C. §§721,
722, 795; 34 C.F.R. §§361.46, 361.47) (Imp: HRS
§§347-4, 348-3, 348-6; 29 U.S.C. §§721, 722, 795; 34
C.F.R. §361.46, 361.47)
§17-401.1-12 Opportunity to exercise informed
choice. (a)
All applicants and eligible individuals
or, as appropriate, their representatives shall be
provided information concerning the availability of,
59
§17-401.1-12
and opportunities to exercise informed choice,
including the availability of support services for
individuals with cognitive or other disabilities who
require assistance in exercising informed choice, to
assist them in exercising informed choice throughout
the rehabilitation process consistent with section
102(d) of the Rehabilitation Act, as amended, and the
requirements of this section.
(b) The division, in consultation with the State
Rehabilitation Council, must develop and implement
written policies and procedures that enable an
applicant or eligible individual to exercise informed
choice throughout the VR process. These policies and
procedures must provide for:
(1)
Informing each applicant and eligible
individual (including students with
disabilities who are making the transition
from programs under the department of
education to programs under the division),
through appropriate modes of communication,
about the availability of and opportunities
to exercise informed choice, including
support services for individuals with
cognitive or other disabilities who require
assistance in exercising informed choice
throughout the VR process;
(2)
Assisting applicants and eligible
individuals in exercising informed choice in
decisions related to the provision of
assessment services;
(3)
Developing and implementing flexible
procurement policies and methods that
facilitate the provision of VR services and
that afford eligible individuals meaningful
choices among the methods used to procure VR
services;
(4)
Assisting eligible individuals or, as
appropriate, the individuals’
representatives in acquiring information
that enables them to exercise informed
60
§17-401.1-12
choice in the development of their IPEs with
respect to the selection of the:
(A)
Employment outcome;
(B)
Specific VR services needed to achieve
the employment outcome;
(C)
Entity that will provide the services;
(D)
Employment setting and the settings in
which the services will be provided;
(E)
Methods available for procuring the
services; and
(F)
Ensuring that the availability and
scope of informed choice is consistent
with the obligations of the division.
(c) In assisting an applicant or eligible
individual in exercising informed choice during the
assessment for determining eligibility and VR needs
and during development of the IPE, the division must
provide the individual or the individual’s
representative, or assist the individual or the
individual’s representative in acquiring, information
necessary to make an informed choice about the
specific VR services including the providers of those
services, that are needed to achieve the individual’s
employment outcome. This information must include, at
a minimum, information relating to the:
(1)
Cost, accessibility, and duration of
potential services;
(2)
Consumer satisfaction with those services to
the extent that information relating to
consumer satisfaction is available;
(3)
Qualifications of potential service
providers;
(4)
Types of services offered by the potential
providers;
(5)
Degree to which services are provided in
integrated settings; and
(6)
Outcomes achieved by individuals working
with service providers, to the extent that
such information is available.
(d) In providing or assisting the individual or
the individual’s representative in acquiring the
61
§17-401.1-12
information required under subsection (c), the
division may use, but is not limited to, the following
methods or sources of information:
(1)
Lists of services and service providers.
(2)
Periodic consumer satisfaction surveys and
reports.
(3)
Referrals to other consumers, consumer
groups, or disability advisory councils
qualified to discuss the services or service
providers.
(4)
Relevant accreditation, certification, or
other information relating to the
qualifications of service providers.
(5)
Opportunities for individuals to visit or
experience various work and service provider
settings.
(e) The division shall include in the division’s
record of services for the individual, documentation
describing the extent to which the applicant or
eligible individual exercised informed choice
regarding:
(1)
The provision of assessment services; and
(2)
The extent to which the eligible individual
exercised informed choice in the development
of the IPE with respect to:
(A)
The selection of the specific
employment outcome;
(B)
The specific VR services needed to
achieve the employment outcome;
(C)
The entity to provide the services;
(D)
The employment setting;
(E)
The settings in which the services will
be provided; and
(F)
The methods to procure the services.
[Eff AUG 13 2007
] (Auth: HRS
§§347-4, 348-3, 348-6; 29 U.S.C. §§709,
721, 722; 34 C.F.R. §§361.47, 361.52)
(Imp: HRS §§347-4, 348-3, 348-6; 29
U.S.C. §§709, 721, 722; 34 C.F.R.
§§361.47, 361.52)
62