Eligibility, Ineligibility, Trial Work Experience and Extended Evaluation

(1) An individual is eligible for vocational rehabilitation assistance if the individual: (a) Has a physical or mental impairment which for such individual constitutes or results in a substantial impediment to employment; and (b) Requires vocational rehabilitation services to prepare for, enter, engage in or retain gainful employment consistent with the applicant’s unique strengths, resources, priorities, concerns, abilities, capabilities and informed choice; and (c) Can benefit from vocational rehabilitation services in terms of an employment outcome. It will be presumed that an individual can benefit from vocational rehabilitation services in terms of an employment outcome unless the Commission can demonstrate by clear and convincing evidence that he or she is incapable of benefiting from such services in terms of an employment outcome. (2) Substantial impediment to employment refers to a physical or mental impairment which, in light of medical, psychological, vocational, educational and other related factors, impedes an individual's occupational performance by preventing his/her obtaining, retaining, or preparing for employment consistent with his/her capacities and abilities. The existence and extent of the impairment must be the primary reason the individual is unable to achieve an employment outcome consistent with his or her strengths, resources, priorities, concerns, abilities, capabilities, interests and informed choice and this decision must be made by a qualified vocational rehabilitation counselor. Individuals who are currently employed can be determined eligible for services to maintain, regain or to advance in employment if their impairment results in a substantial impediment to advancing or retaining employment. Eligibility for vocational rehabilitation services should be considered when, due to the impairment, the individual’s current employment is not consistent with the individual’s strengths, resources, priorities, concerns, abilities, capabilities, interests and informed choice. (3) An individual who has a disability and receives SSI or SSDI benefits under Title II or Title XVI will be considered anindividualwith a significant disability who has a physical or mental impairment that constitutes or results in a substantial impediment to employment. (4) If it appears that, due to the nature and severity of an individual's disability, the individual is incapable of benefiting from vocational rehabilitation services in terms of an employment outcome, the Commission is required to obtain clear and convincing evidence before making an ineligibility decision. In order to meet this requirement the Commission will consult with the individual and provide an opportunity for a trial work experience. If the individual is incapable of participating in a trial work experience then or an extended evaluation must be provided. (5) An individual must be provided vocational rehabilitation services under a trial work experience or extended evaluation when the Commission’s assessment determines that: (a) The individual has a physical or mental impairment, which for the individual constitutes or results in a substantial impediment to employment; and (b) Because ofthe nature and severityofthe individual's impairment, there is an inability to make a determination that vocational rehabilitation services can benefit the individual in terms of an employment outcome unless there is trial work experience or extended evaluation to determine eligibility for vocational rehabilitation services. (6) A written planfor the trialwork experience must be outlined in the case record. Only services to determine eligibility or to determine the existence of clear and convincing evidence that the individual is incapable of benefiting from an employment outcome because of the severity of the disability can be provided during a trial work experience or if necessary, an extended evaluation. The written plan must include the expected duration of services, identification of the service provider and how the experience will contribute to the determination of the individual’s eligibility. All services will be provided under the same parameters as when the services are provided under an Individualized Plan for Employment (IPE), that it be conducted in the most integrated setting possible, using a variety of realistic work experiences including, supported employment, on the job training and must be ofsufficientduration and variety to provide all the necessary information needed to make an eligibility decision withthe goal of employment. Only one trial work experience or extended evaluation will be permitted following the individual's application for services and the determination of eligibility or ineligibility should be made as soon as there is sufficient evidence available to the Commission. (7) The Commission must make a thorough assessment of the individual's progress as often as necessary, but at least once every 90daysduringthe period in which services are being provided under a trial work experience or extended evaluation for determination of eligibility. (8) The trial work experience or extended evaluation for the determination of eligibility will end when the individual is: (a) Determined to be eligible for vocational rehabilitation services since it has been shown that he/she can benefit from such services in terms of an employment outcome; or (b) Determined to be ineligible for vocational rehabilitation services on the basis of clear and convincing evidence that he/she is incapable of benefiting from such services in terms of an employment outcome; or (c) Unavailable to complete an evaluation of eligibility for anextended period of time and repeated efforts have been made to contact the individualand encourage his/her participation. All efforts to contact the individual must be documented in the individual's case record before closure. (9) When completing the assessment for determining eligibility, the counselor must document the findings about how the individual does or does not meet the basic conditions for eligibility. (10) Only those services necessary to assess eligibility, order of selection assignment, and nature and scope of vocational rehabilitation services may be provided prior to the completion of the certification of eligibility and Individualized Plan for Employment, unless an individual is certified for a trial work experience or extended evaluation to determine eligibility. (11) Eligibility will be determined as soon as there is sufficient information to decide whether or not the individual meets or does not meet the requirements for eligibility but not more than 60 days from the date of application. The 60 day time period for determining eligibility can be extended only if there are exceptional and unforeseen circumstances beyond the Commission's control that prevent an eligibility decision within the 60 day time period. If an extension of time for the purposes of determining eligibility is needed, the counselor must: reach an agreement with the individual to extend the 60 day limit, provide him or her written notice concerning the circumstances for the delay, and discuss how the eligibility determination can be completed within the new time frame. If an extension of time is needed and no agreement can be reached, an individual must be advised of the rights and remedies that are available, including the right to a hearing by an impartial hearing officer and a referral to the Client Assistance Program. (12) The assignment of an order of selection priority will be made after an eligibility determination is completed and before an IPE is developed, based on the availability of necessary and appropriate documentation and the requirements of order of selection. (13) A determination of ineligibility may be made only after an assessment to determine eligibility has been provided and the Commission finds that the individual does not meet the basic conditions for eligibility as set forth in 107 CMR 4.07. All ineligibility decisions must be made only after full consultation with the individual, or as appropriate his or her representative, and the individual is informed of the decision in writing; including the reasons for the decision, information about appeal rights and the availability of the Client Assistance Program, as well as other appropriate services or resources including Independent Living Centers. A dated certificate which states that the individualis ineligible for services and the reasons for the ineligibility must be completed and placed in the individual’s case record. Before a determination of ineligibility can be made, that due to the nature and severity of an individual’s disability, he or she cannot benefit fromvocational rehabilitation services in terms of an employment outcome, an individual must first be provided anopportunity to participate in a trial work experience or extended evaluation. Information from the trialwork experience orextended evaluation must be included in the case record and support the determination of ineligibility with clear and convincing evidence. The counselor should also inform the individual of his or her right to reapply for Commission services if circumstances change. (14) Any decision of ineligibility, which is based on a finding that the nature and severity of disability are such that an individual cannot presently benefit from vocational rehabilitation services in terms of an employment outcome, will be reviewed at least annually in consultation with the individual. The results of such review will be documented in the individual's case record and submitted for approval by personnel as may be required by the Commission. The Commission will initiate the first review. Any subsequent reviews must be initiated by the individual. A review is not required when the individual is no longer present in the state; or the individual has refused it; or the individual's whereabouts are unknown; or the individual's medical condition is rapidly progressive or terminal.