STATE OF OREGON
Department of Human Resources
Office of Vocational Rehabilitation Services
In the Matter of )
)
Max XXXXX, ) IMPARTIAL HEARING
Claimant ) OFFICER DECISION
)

HEARING DATE, TIME AND LOCATION
May 13, 2004, 10:30 a.m. to 6:30 p.m., Office of Vocational Rehabilitation Services, Roseburg, Oregon 97470. Max XXXXXXX (Claimant) appeared with his representative, Betsy Cunningham. He and his wife, Nikki XXXX, testified on his behalf. Shari Eskro represented the Office of Vocational Rehabilitation Services (VR) and called two witnesses, Amy Kincaid and Brent Westwood. The hearing was continued on June 8, 2004, by telephone, for oral closing argument from 2:30 p.m. to 3 p.m. The record was then closed.
ISSUES
On March 26, 2004, Max XXXXXXXX (Claimant) submitted a request for hearing to the Office of Vocational Rehabilitation Services (VR). The issues raised by his request are:
1. Whether VR has authority to require Mr. (Claimant) to submit to a neuropsychological evaluation and a community-based work evaluation prior to providing further services.
2. Whether VR has grounds to terminate services to Mr. (Claimant) for non-cooperation.
3. Whether VR provided appropriate notice prior to requiring a neuropsychological assessment.
EVIDENTIARY RULING
Exhibits H1, H2, VR’s Exhibits A1 through A45, and Claimant’s Exhibits B1 through B11 were admitted to the record.
FINDINGS OF FACT
(1) Max (Claimant) (Claimant) is a 42--year-old man who has been diagnosed with Attention-Deficit/Hyperactivity Disorder (ADHD) Combined Type, Disorder of Written Expression and chronic low back pain. He has applied for services from VR and on and off since 1993.
(2) Since 1997, Claimant has received counseling from Doug Eckstein, Licensed Professional Counselor. In about April 2002, VR referred Claimant to Eckstein for a diagnosis of Claimant’s ADHD as well as any potential comorbid disorders. Eckstein met with Claimant on May 30, 2002, and issued a report that day. (Ex. A16.) In his report, Eckstein notes that Claimant reports struggles with recurring depression, a long history of alcohol and drug abuse, and a current prescription for medical marijuana. Eckstein had Claimant and his wife fill out various assessments to diagnose ADHD. Eckstein concluded that Claimant clearly meets the diagnostic criteria for ADHD, Combined Type. Eckstein specifically concluded:
His greatest difficulties vocationally will arise from distractibility, impulsivity, poor organization, moodiness and poor memory. His mood appears to fluctuate according to his sense of excitement about the future. He becomes expansive while entertaining new ideas only to find himself disappointed and depressed if he becomes overwhelmed with the implementation of these ideas. Complicating this process is a pervasive sense of sensitivity to criticism and negative feedback, which will make it difficult to redirect any efforts, which he undertakes. The resulting swings in mood related to this cycle are probably sufficient to justify a diagnosis of Bipolar II Disorder.
* * *
[Claimant] has some very clear ideas about how to proceed in his vocational efforts. An appropriate balance must be struck between allowing him the independence many individuals with ADHD require while also encouraging him to be realistic in decision-making. Assisting him in organizational skills to more effectively implement whichever plans are agreed-upon will be an important part of his success or failure. Freeing him up during the day from childcare responsibilities would improve his ability to follow-through with vocational efforts.
* * *
Given his deficits in reading fluency and in writing, emphasis should be placed on using technological enhancements, which he is both interested in and competent with. Voice recognition software may be very helpful in providing him with greater competence in the expressive aspects of his vocational efforts. Handheld devices or laptop computer can provide significant organizational enhancements as well, in that they are simple, portable and reliable. Organizational software (such as Microsoft Outlook) can assist him in tracking contacts, scheduling his day and maintaining his priorities.
Although his current symptomatology is not severe enough to justify a diagnosis of Personality Disorder, [Claimant’s] history of oppositional and antisocial behaviors should not be ignored. He will probably do better without close supervision. He will also do better with a supportive versus an authoritative style of relating. Clear expectations and objective "cause-and-effect" contracts will likely be more effective than strongly emotional discussions or interactions.
(Id, p. 4.)
(3) On February 13, 2002, Pamela Joffe, Ph.D., completed a Learning Disability Assessment of Claimant. She concluded that Claimant’s strengths were good math and reading skills and his awareness of his strengths and weaknesses. She concluded that his weaknesses were difficulties in focusing and lowered performance in timed tasks. She recommended that he continue working with VR and obtain continuing training. (Ex. A17.)
(4) During the last couple of years, Claimant has mainly cared for his child so that his wife can work, but he has also sought further computer training. His last job was as a distributor in late 2001. He quit this job because he felt the work requirements were contrary to law. His main employment during the last five years has been with a company that produces coupon books for various communities. He started out as a delivery person and eventually received promotions to his final job as a salesperson. He worked as a salesperson for almost two years until he quit because he was on the road too much. He has had some self-employment as a computer troubleshooter, including helping to set up the first local Internet server in his town. (Ex. A35.)
(5) On April 24, 2002, Claimant participated in an Integrated Community Resource Team Meeting, along with his wife and his representative. His VR counselor and a facilitator were also at the meeting. The facilitator said the meeting was to help Claimant and his family access needed services. Claimant said that he needed child care reimbursement so that he could participate in vocational training. VR suggested that Claimant should undergo a new psychiatric evaluation in order to document his current level of disability, the name of his therapist who was treating him for ADHD, and a copy of his medical marijuana use card. Claimant could not understand why VR needed a copy of his card, and the meeting adjourned without any agreement. (Ex. A34.)
(6) On June 11, 2002, Claimant contacted his new VR counselor, seeking assistance to become self-employed as a computer technician. He specifically wanted help in focusing, organizing and keeping him on track. His counselor concluded that his biggest barrier was being easily distracted. (Ex. A36.)
(7) On June 12, 2002, Claimant delivered a letter to the manager of his VR office. In the letter, he asked for a hearing because he believed he was not receiving service within the appropriate time limit. He specifically wanted VR to implement his plan or tell him what needed to be done for him to implement his plan. (Ex. A37.) He was not granted a hearing, and his file was apparently closed due to lack of contact.
(8) On February 17, 2004, Claimant applied again to VR for services. He was found to be disabled, based on his ADHD, Disorder of Written Expression and chronic low back pain, and eligible for services. As a goal for his Individual Plan for Employment (IPE), he proposed self-employment as computer technician on call. VR has never responded to his proposal. It is unwilling to create any IPE for him until he submits a neuropsychological assessment to determine the extent of his cognitive and psychological limitations and then a community-based work assessment to determine his ability to appear for work on time and to work with others. (Ex. A11.)
(9) During his initial appointment February 17, 2004, the branch manger of his VR office and the VR hearing representative met with him. They felt that Claimant was at first very loud and demanding, but later became very open and non-demanding. He complained that he had been trying to receive services from VR since 1993, but had received only a binder. The branch manager told him that they would be starting over, but then said there were still questions from his last claim in 2002. She told him VR wanted him to do a community assessment. He said it was unnecessary because he only needed some courses so that he could work at home as a computer technician and earn $55,000 per year. The branch manager said VR wanted a community assessment to see how well he worked with others because a computer technician needs to work with people. Claimant said he needed a computer and a DSL computer line and that VR should issue some checks for these things. The branch manager explained that VR is not an entitlement program, but an eligibility-based program. Claimant said he would not do a community assessment at Sunrise or Monitors and More. (Ex. A12.)
(10) The branch manager also said that VR wanted him to undergo a psychological evaluation, based on Eckstein’s conclusions. Claimant said that such an evaluation was not going to happen. The branch manager said VR needed information regarding his Bi-Polar Disorder and any barriers to employment that the Disorder may pose. She also explained that his VR counselor had to approve any plan. Claimant said he would not submit to any more testing, but he may go to Eckstein for job counseling. The branch manager told him that if he did not want to submit to both assessments, he could request a hearing. He said he would request a hearing. She also noted that he reported using marijuana per doctor’s prescription for pain, but that marijuana could also be a barrier to employment. He denied any problem with smoking marijuana. The branch manager again said that VR wanted him to undergo the assessments and that the community assessment would be in the community and not Sunrise. Claimant said that he had done volunteer work involving customer service. He said he needed eight certifications and equipment that would cost a little less than $80,000. The branch manager again said that VR needed an assessment of his customer service skills. He replied that he has excellent customer service skills. (Id.)
(11) After the meeting, the branch manager sent Claimant, per his request, an email, outlining what he needed to provide at the next meeting on March 2, 2004. She specifically requested that he provide details of his customer service experience and his self-employment. She also asked for information regarding other businesses that were doing what he wanted to do. She further asked that he provide market research regarding his goal of being a self-employed computer technician. (Ex. A13.)
(12) On February 20, 2004, Claimant sent an email to the branch manager, outlining his market research. He stated that it was limited because he was having web problems, but provided a web site for the branch manager to investigate the opportunities as a self-employed computer technician. He also asked who was the VR hearing representative and whether she was going to be involved in all his meetings. He then referred to information regarding his past experience that he gave his prior VR counselors. He explained that he was a little hostile because he was frustrated in having to obtain work on his own without help from VR. He ends the email by demanding a new computer, printer, personal digital assistant, some software, and digital voice recorder. (Ex. A14.)
(13) On February 24, 2004, Claimant sent another email to the branch manager, asking the questions again that he raised in his prior email and again asking for the equipment that he felt he needed to be a self-employed computer technician. He further explained that he did not need a relationship with a counselor who was not familiar with ADHD. He further asked for reasonable accommodation for his ADHD. He finally stated that he was not willing to undergo further testing or stalling. (Ex. A28.)
(14) A VR manager responded to Claimant’s email by summarizing what services VR had provided him on a prior claim and explained that VR is a eligibility-based program in which services are provided on an individual basis and individuals are asked to work with a counselor to determine the nature and extent of the individual’s barriers to employment. The manager then outlined basic VR law and told Claimant that he cannot demand particular services or equipment, they had to be part of his Individual Plan of Employment (IPE). He further tells Claimant that he must be willing to work as an equal partner with his VR counselor, which requires him to cooperate with VR’s requests for additional information. He further tells Claimant that if he is not willing to cooperate fully, VR will not be able to assist him. (Ex. A29.)
(15) Claimant responded to the VR manager on March 2, 2004, reasserting that ADA law requires VR to make reasonable accommodations and that VR should provide the services and equipment that he requested. He also expressed considerable frustration from what he perceived was prior inaction and insults from his prior VR counselors. (Ex. A29.)
(16) On March 2, 2004, the branch manager called Claimant and told him that VR was going to require him to undergo a neuropsychological assessment and if he did not agree, it would be a waste of his time to meet as scheduled. Claimant requested an apology from his prior VR counselors because they insulted him. He said that if they had made those comments to him on the street, he would have "kicked their ass" and VR would be responsible for his assault charge. The branch manager again brought up the requirement of a psychological assessment. Claimant said VR had adequate documentation in the reports from Eckstein and Joffe. The branch manager told him that a different battery of tests was needed to determine further diagnosis and barriers to employment. Claimant said the reports should be adequate. The branch manager said he could request a hearing. Claimant said he wanted to see the decision in writing. The branch manager promised to do that the next day. (Ex. A20.)
(17) On March 3, 2004, the branch manager sent a letter to Claimant, stating:
After reviewing the information included in you [sic] file it is my professional opinion that our next step needs to be your participation in a Psychological Evaluation and a Community Work Assessment. These two steps will need to be taken prior to exploring further services toward the development of your plan for employment.
(Ex. A21.) The letter advised Claimant that he could request a hearing, which he did on March 26, 2004. (Ex. A1.)
(18) On March 3, 2004, Claimant emailed the branch manager, asking for more information regarding the evaluations, specifically:
1. How long would this work assessment be?
2. What exactly would it assess? Please put all the points that you believe need to be assessed to be determined if I can go to work.
3. Who would do this assessment? Or what are my options for having this done?
And for the psyco eval [sic]
What services would I require if I allow the eval?
If I am Bi-polar how would that change my plan?
If I am Bi-polar does OVRS intend to send me to SSD to get me off their butts?
If I am Bi-polar is OVRS using this eval to further discriminate against my disability (go back to how it would change my plan, because if a diagnosis of Bi-polar does not significantly change my plan you are using this topic to practice discrimination against me)?
(Ex. A22.) VR never answered his questions. (Test. of Claimant.)
(19) On March 4, 2004, Claimant sent an email to the branch manager and the VR manager after reviewing his file that VR provided to him. In the email, he quoted Eckstein’s report of May 30, 2002, to support his conclusion that he was eligible for services and referred to Eckstein’s recommendation that VR use supportive versus authoritative styles of relating. In regards to that recommendation, Claimant stated that VR has not been supportive, but authoritative, which limited any progress on his claim. He again demanded a new computer, voice recognition software, a digital voice recorder, a PDA, and a DSL line to his house, which he requested in his prior claim. Claimant further states that he feels no support from VR and asks for VR to consult with Eckstein. (Ex. A30.)
(20) On March 5, 2004, Dr. Sharon Olds, a consultant hired by VR to review Claimant’s file, found four diagnoses for Claimant: depression; Bipolar Disorder; ADHD; and personality disorder without sufficient documentation. She recommended a neuropsychological evaluation to assess both cognitive and affective components. (Ex. A25.)
(21) On March 28, 2004, Claimant sent another email to the branch manager and the VR manager. In the email, he demanded that the VR manager was wrong regarding ADA accommodations and should communicate with him via email. He also asked for a computer as a reasonable accommodation to facilitate his communications with VR. He further wrote that the VR manager had done a very poor job on his case. He complained about VR not answering his questions and being forced to get a response. (Ex. A32.)
(22) On April 14, 2004, Claimant sent an email to the VR hearing representative, complaining about another VR manager who reviewed Claimant’s file at VR’s request. He demanded that the VR manager admit that he was wrong in not allowing Claimant to communicate via email as a reasonable accommodation. The tone of the email becomes angry and demanding. He states at one point:
[VR mgr.] I can assure you I will not be a good boy. I will do everything in my power to get my case moving. [VR mgr.] you have taken my voice from me. Some that do not get heard will resort to drastic measures. I think that when you relegate someone to a powerless position, you are forcing him or her into inappropriate action. Thus, we have terrorists seeking to kill us. If we had the foresight to honor the beliefs of the Afghani people and only give the assistance asked for with the USSR, we would not be in this mess today. May I please have my voice back? I am asking nicely this time. I may not do such a thing in the future without cooperation.
(Ex. A32.) He asked further questions about the review by the VR manager and the neuropsychological assessment and further counseling sessions with Eckstein. He asked that his emails be acknowledged. (Id.) He did not receive a response from VR. (Test. of Claimant.)
(23) On April 12, 2004, a manager and counselor in another office (Review Team) submitted a report after reviewing Claimant’s file from March 26, 2002, through March 30, 2004. They also considered Dr. Labs’ report and met with Claimant and his representative. During this meeting, Claimant first refused to submit to a neuropsychological assessment and to work with anyone in his VR office. Later during the interview, he later relented that he might be able to work with a particular counselor in his VR office and that he would undergo the assessment if VR would look at his self-employment plan. The Review Team declined to look at his plan, feeling his plan was very general without enough detail and was not in the necessary format. Five minutes after the interview ended, Claimant returned and said he would do the assessment if he could have a one-hour session with Eckstein. The recommendations of the Review Team were that:
1. Claimant complete a neuropsychological assessment because such assessments are necessary for solid, informed choices and is the foundation of the rehabilitation process.
2. Claimant undergo a community-based work assessment because it is an appropriate and sound vocational rehabilitation tool, especially in light of Claimant’s past employment history and his behavior in the VR office
3. Claimant undergo a Physical Capacities Evaluation because his medical information has not been updated since 1994.
(Ex. A39.)
CONCLUSIONS OF LAW
1. VR has not fulfilled its procedural and policy obligations prior to requiring Claimant to submit to a neuropsychological assessment.
2. VR has not established grounds to terminate services to Claimant for non-cooperation.
3. VR did not provide appropriate notice prior to requiring a neuropsychological assessment.
OPINION
1. Requirement of a neuropsychological evaluation
"The burden of presenting evidence to support a fact or position in a contested cas rests on the proponent of the fact or position." ORS 183.450(2). VR has the burden of proving that a neurological assessment of Claimant is necessary and that VR complied with the policy and procedure stated in the federal law.
Claimant was found eligible for VR services, based on his disabilities. The next step in the vocational rehabilitation process is to develop an individualized plan for employment (IPE) for him. VR is required to conduct an assessment for determining vocational rehabilitation needs. 34 CFR sec. 361.45(2)(b). VR asserts that Claimant must submit to three assessments—neuropsychological, community-based, and physical—before VR will provide services to him. It also asserts that the neuropsychological assessment is a prerequisite to the community-based assessment. The initial question is whether VR can require Claimant to submit to a neuropsychological assessment before providing him further services.
VR claims that a neuropsychological assessment is necessary, based on consultant Labs’ report and the report of the Review Team. In Labs’ report dated March 5, 2004, she recommended "referral for a neuropsychological evaluation to assess both cognitive and affective components." (Ex. A25.) The Review Team of a VR manager and a counselor from another VR office subsequently reviewed Claimant’s file and on April 12, 2004, recommended a neuropsychological assessment and the other assessments. (Ex. A39.) These reports supported VR’s initial and only proposal that Claimant submit to a neuropsychological evaluation before any services will be provided to him. VR alleges that such recommendations prove that a neuropsychological assessment is necessary to determine the employment outcome and nature and scope of services to be included in Claimant’s IPE. VR has established that a neuropsychological assessment may be a useful tool in determining an IPE for Claimant, but the same rules relied upon by VR also require it to take a number of policy and procedural steps before it can unilaterally require Claimant to submit to a neuropsychological assessment before providing him further services.
Because VR concluded that additional data is needed, VR 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, in the most integrated setting possible, consistent with the informed choice of the individual in accordance with 34 CFR Sec.361.5(b)(6)(ii). VR argues that informed choice is not required until after the assessment, but 29 U.S.C. 701, section 102(d) and 34 CFR Sec.361.52 state that Claimant must be fully informed of choices during each step in the VR process. The review team concluded that the "assessments are necessary to make solid, informed choices and decisions" (Ex. A39, p.3). The use of the word "informed choices" was apparently not referring to the above definition of informed choice.
The remaining issue is whether VR took the steps in the federal procedural law and regulation to require Claimant to submit to a neuropsychological assessment in order to be eligible for any VR services. VR has not established in the record that it met the following procedural requirements before requiring Claimant to submit to a neuropsychological assessment:
1. When developing an IPE for an individual, VR must provide information on the available options for developing the IPE, including the option that the individual may develop all or part of the IPE, with or without assistance from VR. 34 CFR sec. 361.45(2)(c)(1). There is no evidence VR provided Claimant with information regarding the option of developing the IPE himself. From the outset stated only one option for him--to submit to the neuropsychological assessment if he wants any services. Claimant has developed his own IPE. He was given no feedback on his plan until the review team wrote in its report that it was too general and lacked specifics. This information was not presented to him, as required by the rule, but prepared as evidence for the hearing. VR must provide specific feedback, especially in light of its duty to provide informed choice. 29 U.S.C. 701, section 102(d) and 34 CFR Sec.361.52.
2. VR has not explained to Claimant or established in the record why the employment outcome and nature and scope of rehabilitation services to be included in his IPE could not be determined from the information relied upon to find him eligible for services. Such explanation and evidence are required by 34 CFR sec. 361.45(f). VR states that Claimant must be assessed for Bipolar Disorder and any related limitations if he is diagnosed with the Disorder, but Eckstein has already concluded that Claimant’s mood swings are related to a cycle of excitement and disappointment and "are probably sufficient to justify a diagnosis of Bipolar II Disorder." (Ex. A16, p. 4.) Eckstein does not specifically address the limitations of someone diagnosed with such a Disorder, but he seemed to be aware of such limitations when recommending a supportive rather than an authoritative approach with Claimant and upon request, Eckstein could provide information regarding limitations due to Claimant’s Bipolar Disorder. His report is a good place to start in determining an employment outcome and the nature and scope of rehabilitation services needed, especially because he is very familiar with Claimant’s abilities and deficits after treating him for many years. VR did not persuasively and adequately explain why Eckstein’s report was insufficient.
VR claimed that Eckstein agreed that Claimant should undergo a neuropsychological assessment, but offered no direct evidence of his concurrence. Claimant asked VR to pay for a visit with Eckstein to see if he would recommend for Claimant to undergo a neuropsychological assessment. A visit with Eckstein seems reasonable under the circumstances, especially in light of Eckstein’s recommendation that a supportive rather than an authoritative model be used when dealing with Claimant and in light of VR’s obligation to provide informed choice because Eckstein could better explain to Claimant what was involved with the neuropsychological assessment.
3. Regarding informed choice, Claimant was never given other options or any explanation for why VR was considering no other option besides a neuropsychological assessment, despite the clear directions in 26 CFR sec. 361.45(f) to first consider existing information that led to the determination of eligibility. He was also never given options or explanations for why VR concluded that additional data was necessary in order to develop an IPE for him. Specifically, VR failed to provide informed choice regarding other ways to assess Claimant’s unique strengths, resources, priorities, concerns, abilities, capabilities, and interests, or why the neuropsychological assessment is the only option to properly assess these areas. He specifically asked for such information with direct and clear questions in his emails, but VR did not answer his questions, which was a clear violation of its duty to provide informed choice. He continues to have questions regarding the neuropsychological assessment, such as who would perform the assessment, what tests would be administered, and what would happen if he is diagnosed with Bipolar Disorder as he fears. VR has not answered these questions or attempted to negotiate with him regarding VR’s requirement that he submit to a neuropsychological assessment. Claimant has been willing to negotiate by offering to undergo a neuropsychological assessment if VR would review the IPE he prepared. When VR did not accept this offer, he agreed to the neuropsychological assessment if VR allows him a session with Eckstein. VR has sought only an unconditional acceptance on Claimant’s part, despite the advice from Eckstein that a supportive approach would work best with Claimant. It almost seems as if Claimant must be cured of his oppositional attitude in order to determine the limitations due to his oppositional attitude. If Claimant were able to negotiate unconditional demands, he probably would not be diagnosed with Bipolar Disorder.
4. Also regarding informed choice, Claimant was never advised that VR, in preparing the comprehensive assessment, had used, to the maximum extent possible and appropriate, existing information that is current, including: information available from other programs and providers, particularly information used by education official and the Social Security Administration; information provided by the individual and the individual’s family; and information obtained under the assessment for determining the individual’s eligibility and vocational rehabilitation needs. See 34 CFR sec. 361.45(f). VR provided such information at the hearing, but not to Claimant before requiring him to decide whether to submit to the neuropsychological assessment.
Claimant has been increasingly confrontive and verbally aggressive in his emails to VR. Due to his ADHD and probable Bipolar Disorder, he has a low frustration tolerance at times, especially when confronted with what must appear to him as intransigence on VR’s part. His threats are not excused, but explained as a symptom of his diagnosed disabilities. VR’s apparent intransigence may be due in part to the fact that his former and current counselors do not like him because they feel he is demanding and threatening. Claimant is a large man and his appearance can appear threatening to some. A former counselor told him that he had never found a job because of his attitude. His oppositional disorder is one of the symptoms of his disability and a reason he is seeking VR assistance. It appears that VR’s insistence on Claimant submitting to the neuropsychological assessment may be due in part to VR’s frustration with him because it is clear from Eckstein’s report that such an insistence without any other options would not gain Claimant’s cooperation in submitting to the neuropsychological assessment.
In summary, VR has established that a neuropsychological assessment may eventually be necessary for Claimant, but it has not established that it is legally necessary for him at this time because VR has not adequately explained or established how it fulfilled or met the prior procedural steps required by federal law, especially the requirement to provide informed choice. VR has cited various federal and state regulations, but it cannot ignore parts of the same federal regulations that set out the policy and procedures before requiring a neuropsychological assessment. For these reasons, its requirement that Claimant submit to the neuropsychological assessment before he receives any further services is premature and unenforceable under the applicable regulations.
2. Grounds to terminate services for non-cooperation.
As explained above, VR did not follow the policy and procedure requirements in regards to assessment and informed choice. It therefore has not established grounds to terminate services for non-cooperation.
3. Appropriate notice prior to requiring a neuropsychological assessment.
As explained above, VR did not follow the policies and procedures in the federal law and regulations when requiring the neuropsychological assessment. Therefore, there is no need to decide whether Claimant’s Constitutional Due Process rights were violated.
DECISION

VR has not established policy and procedural grounds under federal law to require Claimant to submit to a neuropsychological assessment at this time.

____________________________ July 8, 2004
Lawrence S. Smith Date
Impartial Hearing Officer

PROVISION FOR REVIEW
This decision is a final order. You may challenge all or part of this decision by filing a written Request for Formal Administrative Review. This request should be mailed or delivered to OVRS Dispute Resolution Coordinator, 500 Summer Street NE, E87, Salem, Oregon 97301-1120. Your request must be received by OVRS in Salem no later than 20 days after the date of mailing of this decision.
STATEMENT OF MAILING
I certify that on July 8, 2004, I served the attached the Impartial Hearing Officer’s Decision by mailing to person listed below by mailing in a sealed envelope, with first class postage prepaid, a true copy to the designated addresses:
Max XX (Claimant) XX Shari Eskro
P.O. Box XXXX Office of Vocational Rehabilitation Services
Sutherlin, OR 97479 2885 Chad Drive
Eugene, OR 97408
Betsy Cunningham, Representative
6104 Little River Road
Glide, OR 97443
Mariah Forrest, Hearings Coordinator
Oregon Department of Human Resources
Vocational Rehabilitation Division
500 Summer Street NE
Salem, OR 97310-1018
(With the record, exhibits and hearing tapes)


______________________________
Lawrence S. Smith
Impartial Hearing Officer

APPENDIX
26 CFR sec. 361.45(f) states in relevant part:
The Data for Preparing the IPE are:
(1) Preparation without comprehensive assessment: To the extent possible, the employment outcome and the nature and scope of rehabilitation services to be included in an individual’s IPE must be determined on the date used for the assessment of eligibility * * *.
(2) Preparation based on comprehensive assessment:
(i) If additional data are necessary to determine the employment outcome and nature and scope of services to be included in the IPE of an eligible individual, [VR] 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, in the most integrated setting possible, consistent with the informed choice of the individual in accordance with the provisions of Sec.361.5(b)(6)(ii).
(ii) In preparing the comprehensive assessment, [VR] must use, to the maximum extent possible and appropriate, and in accordance with confidentiality requirements, existing information that is current as of the date of the development of the IPE, including—
(A) Information available from other programs and providers, particularly information used by education official and the Social Security Administration;
(B) Information provided by the individual and the individual’s family; and
(C) Information obtained under the assessment for determining the individual’s eligibility and vocational rehabilitation needs.

27 CFR Sec 361.5(b)(6).states in relevant part:
Assessment for determining eligibility and vocational rehabilitation needs means, as appropriate in each case—
(i)(A) A review of existing data—
(1) To determine if an individual is eligible for vocational rehabilitation services; and
* * *
(B) To the extent necessary, the provisions of appropriate assessment activities to obtain necessary additional data to make the eligibility determination and assignment;
(ii) To the extent additional data are necessary to make a determination of the employment outcomes and the nature and scope of vocational rehabilitation services to be included in the individualized plan for employment of an eligible individual, a comprehensive assessment to determine 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 individualized plan of employment of the eligible individual;
(B) Uses as a primary source of information, to the maximum extent possible and appropriate, and in accordance with confidentiality requirements—
(1) Existing information, to the maximum extent possible and appropriate, and in accordance with confidentiality requirements--
(2) 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 develop the capacities of the individual to perform adequately in a work environment;
(iii) Referral, for the provision of rehabilitation technology services to the individual, to assess and develop the capacities of the individual to perform in a work environment; and
(iv) An exploration of the individual’s abilities, capabilities, and capacity to perform in work situations, which must be assessed periodically during trial work experiences.
29 U.S.C. 701, section 102(d) states in relevant part:
Each designated State agency [VR], in consultation with the State Rehabilitation Council, if it has a Council, shall, consistent with section 100(a)(3)(C), develop and implement written policies and procedures that enable each individual who is an applicant for or eligible to receive vocational rehabilitation services under this title to exercise informed choice throughout the vocational rehabilitation process carried out under this title, including policies and procedures that require [VR]--
(1) to inform each such applicant and eligible individual * * * through appropriate modes of communication, about the availability of and opportunities to exercise informed choice, including the availability of 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 throughout the vocational rehabilitation process;
(2) to assist applicants and eligible individuals in exercising informed choice in decisions related to the provision of assessment services;
29 CFR Sec.361.52 states in relevant part:
Informed Choice
(a) General provision. The State plan must assure that applicants and eligible individuals or, as appropriate, their representatives are provided information and support services to assist applicants and eligible individuals in exercising informed choice throughout the rehabilitation process consistent with the provisions of section 102(d) of the Act and requirements of this section.
(b) Written policies and procedures. The designated State unit [VR], in consultation with its State Rehabilitation Council, if it has a Council, must develop and implement written policies and procedures that enable an applicant or eligible individual to exercise informed choice throughout the vocational rehabilitation process. These policies and procedures must provide for—
(1) Informing each applicant and eligible individual * * * through appropriate modes of communication, about the availability of and opportunities to exercise informed choice, including the availability of 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 throughout the vocational rehabilitation process;
(2) Assisting applicants and eligible individuals in exercising informed choice in decisions related to the provision of assessment services;