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Shadow Cat

Can someone clarify a couple of M28R, and CFR's for voc rehab

Question

I need some input regarding a few regs. I returned to school last fall through VR&E, but was put on an IEEP because of a diagnosis of PTSD 8 years ago and rated 100% for it. I am a senior graduating in December and have always been a 4.0 GPA student. At the end of the semester, my new case manager decided that she was not going to fund my last semester (spring 2018, that I just finished) and i ended up paying for it out of my pocket. I was also put infront of a panel who a few weeks later made a "recomendation" (read mandated) for futher evaluations, neuropsychological evaluation, anger management skills group, and mental health counseling. I asked for an admin review and was told by one supervisor that I could not have one because there was a "recomendation" and not a decision made.  The following are a few messages between the supervisor and myself. What I really need is a solid way to push the issue with the regulations. They seem to think that they are fully justified simply because the did not put it in my IEEP.

 

In advance, Thank you.

Bob

leter 1

 

February 27, 2018

David Crosby

Department of Veterans Affaires

VA Regional Office

VR&E Division

5400 W. National Avenue

Milwaukee, WI 53214

Dear David Crosby,

I am writing to you to request that you review my record for an administrative review. The reason for this, is that I am in an IEEP and I strongly disagree with the panel’s decision based on the following:

·       As a full time, college senior with a 4.0 GPA, I have more than proven my abilities to deal with a stressful environment. I should be allowed to continue my education through the VR&E program.

·       My enrollment in the IEEP allows for an additional semester of education as long as the second semester is not to determine academic potential, which I have more than proven. I have met each of the requirements stated except, the last 2 bullets points, because they are the responsibility of the VA and not the veteran. Please see below.

·       I should also be able to continue to receive my subsistence pay as indicated below in part 3, 5.

·       The panel has recommended that I attend a neuropsychological evaluation, anger management skills group, and mental health counseling based from a rating decision made eight years ago.

·       The panel did not look at my medical records from the Seattle VA PSHCS to see the counseling, anger management and neuropsychological testing that I have gone through since the rating decision and the last neuropsychological test was done in 2012 after a motor vehicle accident to assist with TBI testing. This would show my progress and that I am in a place that I do not need the recommended objectives per my mental health team in Washington state. 

·       Per M28R, Part IV, Section C, Chapter 3 Revised March 31, 2014, GUIDELINES FOR THE DEVELOPMENT AND ADMINISTRATION OF AN EXTENDED EVALUATION PLAN, states that:

38 CFR 21.53 states that the achievement of a vocational goal is reasonably feasible when the following conditions are met:

1. A vocational goal has been identified, and

2. The Veteran’s physical and mental conditions permit training for the goal to begin within a reasonable period, and

3. The Veteran possesses the skills to pursue the vocational goal, or VR&E will provide the training necessary to achieve the goal.

All of the above have been met. I have an identified goal that works in conjunction with my IT back ground in disaster recovery and business continuity.

1. Program Goal

Per 38 CFR 21.86, the program goal for an IEEP is to determine if the achievement of a vocational goal is currently reasonably feasible. If possible, a specific occupational goal or occupational cluster and a three-digit Dictionary of Occupational Titles (DOT) code are included. However, if the VRC is utilizing a fast track IEEP, or if the goal is not clearly defined, the use of DOT code 999 is permissible.

38 CFR Ch. I 21.35 Definitions

(2) The term achievement of a vocational goal is reasonably feasible means the effects of the veteran’s disability (service and nonservice-connected), when considered in relation to the veteran’s circumstances does not prevent the veteran from successfully pursuing a vocational rehabilitation program and becoming gainfully employed in an occupation consistent with the veteran’s abilities, aptitudes, and interests;

(3) The term achievement of a vocational goal is not currently reasonably feasible means the effects of the veteran’s disability (service and nonservice connected), when considered in relation to the veteran’s circumstances at the time of the determination:

(i) Prevent the veteran from successfully achieving a vocational goal at that time; or

(ii) Are expected to worsen within the period needed to achieve a vocational goal and which would, therefore, make achievement not reasonably feasible.

This is important because the information the panel had was not taken into consideration.

The following from the same regulations are also not being met:

4. Academic Programs

 Academic coursework may be an appropriate part of an extended evaluation plan, but services cannot consist solely of academic programs. In general, the IEEP should consist of no more than one term of academic coursework. However, one additional academic term may be approved if the reason for the additional term is not solely for the purpose of determining academic potential. When considering if an additional academic term is appropriate, the VRC must:

 • Determine that additional diagnostic and/or evaluative services are needed

• Ensure that the second academic term is authorized in conjunction with these additional diagnostic and/or evaluative services

• Address all feasibility concerns during the second academic term

• Submit written documentation regarding the need for additional services that specifies how the additional services will assist in the determination of feasibility

• Obtain concurrence from the VR&E Officer

5. Subsistence Allowance

Per 38 CFR 21.266, a Veteran participating in an extended evaluation program can receive a subsistence allowance. The allowance is paid in accordance to 38 CFR 21.260.

3. Extended Evaluation and Independent Living Program

A Veteran in a program of extended evaluation or an Independent Living (IL) program may be paid subsistence allowance for full, three-quarter, or half-time participation at the rate specified for institutional training in accordance with 38 CFR 21.260. It is important to note that per 38 CFR 21.260, subsistence allowance is not payable when pursuing a plan at less than half-time unless a determination of reduced work tolerance has been made or unless one-quarter time is allowable under an Individualized Extended Evaluation Plan (IEEP). If an extended evaluation or IL program is pursued on a less than a quarter-time basis, VA will only pay established charges for services provided. The procedures for processing an original or amended award found in M28R.V.B.8 should be followed when processing subsistence allowance for Veterans participating in an extended evaluation or IL program.

Allowance during a period of extended evaluation is paid based on the rate of attendance and the number of dependents. Extended Evaluation program subsistence allowance rates:

Number of Dependents

Full Time

Three Quarter Time

One Half Time

One Quarter Time

No Dependents

$605.44

$454.92

$304.39

$152.17

One Dependent

$751.00

$564.07

$377.14

$188.59

Two Dependents

$885.00

$661.67

$443.31

$443.31

Each Additional Dependent

$64.50

$49.61

$33.10  

$33.10  

 

As you can see, there are clearly problems with the decision that I would like to see resolved.

Sincerely,

 

Reply: 

Dear Mr. Klement:

In response to your letter of 03/08/2018. You are currently in an Extended Evaluation program. You have been provided with the one semester of academic instruction which was part of your extended evaluation. 

According to the regulations to provide a second semester, it must be part of the extended evaluation with a written request for this second week.

There is no written documentation of need for a second semester of training in your extended evaluation plan, or approval for a second semester. Without

these items no reimbursement can not be made through the chapter 31 program.

Sincerely, 

Albert Hess

Supervisory Vocational Rehabilitation Counselor

My reply,

Dear Mr. Hess,

Thank you for your recent reply. Again, my questions have not been answered. Again, I cite the regulation for the authorization for a second semester. I m fully aware of what the regulations say, because I cited it for you and I will again. This was why I wanted an administrative review. I want the second semester put in my IEEP and Ii have supplied the justification for it. Again, your office has failed to cite a regulation that counters this regulation. Also, your last correspondence failed to address the subsistence allowance that I am eligible for because I AM IN AN IEEP! These two things should have been in my plan and need to be added.  It was these two missing items from my IEEP that give justification for an administrative review that I asked for weeks ago.

I would like to have this semester reimbursed since I am still in an IEEP. As long as it is not for academic feasibility, which my grades have more than proven that I am not, then I am allowed to have the second semester while still in the IEEP.  Per M28R, Part IV, Section C, Chapter 3, states “… however, one additional academic term may be approved if the reason for the additional term is not solely for the purpose of determining academic potential. When considering if an additional academic term is appropriate, the VRC must:

 

      • Determine that additional diagnostic and/or evaluative services are needed

                  The panel has recommended more diagnostic testing, the psychiatric neurological meets this requirement

• Ensure that the second academic term is authorized in conjunction with these additional diagnostic and/or evaluative services

            This speaks for itself.

• Address all feasibility concerns during the second academic term

            Has not been done.

• Submit written documentation regarding the need for additional services that specifies how the additional services will assist in the determination of feasibility

            This is your offices job.

• Obtain concurrence from the VR&E Officer

            This is your offices job.

I have more than met this requirement. I would also request my monthly subsistence be restored, with back pay, since I am still in an IEEP, I should still be receiving my monthly subsistence and I am still in school full time.

Per 38 CFR 21.266, a Veteran participating in an extended evaluation program can receive a subsistence allowance. The allowance is paid in accordance with 38 CFR 21.260.

A Veteran in a program of extended evaluation or an Independent Living (IL) program may be paid a subsistence allowance for full, three-quarter, or half-time participation at the rate specified for institutional training in accordance with 38 CFR 21.260. The procedures for processing an original or amended award found in M28R.V.B.8 should be followed when processing subsistence allowance for Veterans participating in an extended evaluation or IL program.

I am asking for this to be reviewed and answered for. I cannot ask in a more direct way than this, so there is no ambiguity or reason for it to not be addressed or understood. I have met the requirements for these two items. If not, please advise why and cite your source so I can find the corresponding regulations. I do not believe there is a counter to these regulations.

VA responce:

Dear Mr. Klement:                                                                                                                                                   

In response to your letter of 02/27/2018, requesting an administrative review of the Vocational Rehabilitation Panel decision.  After review of the meeting notes of 01/26/2018 it is noted that the panel did not make a decision regarding your feasibility to pursue a vocational goal. Rather the panel extended your extended evaluation for another 3 to 6 months with recommendations which needed to be accomplished prior to making that decision.  You can communicate this information to present to the panel through your case manager Rosalie Cifaldi VRC. 

The M28R, Part Ill, Section C, Chapter 33.05 Administrative Review

a. Definition

An administrative review is initiated after a formal decision is made. The review provides the resolution to uphold or overturn the formal decision. It focuses on    

questions regarding policy and procedures, application of the laws; regulatory­ guidelines or directives.

With the continuation of your Extended Evaluation no formal decision was made concerning your feasibility to pursue a vocational goal. Therefore no administrative review can be conducted. 


Sincerely,

Albert Hess

Supervisory Vocational Rehabilitation Counselor

My reply:

 

Dear Mr. Hess,

Thank you for your recent reply. Again, my questions have not been answered. Again, I cite the regulation for the authorization for a second semester. I m fully aware of what the regulations say, because I cited it for you and I will again. This was why I wanted an administrative review. I want the second semester put in my IEEP and Ii have supplied the justification for it. Again, your office has failed to cite a regulation that counters this regulation. Also, your last correspondence failed to address the subsistence allowance that I am eligible for because I AM IN AN IEEP! These two things should have been in my plan and need to be added.  It was these two missing items from my IEEP that give justification for an administrative review that I asked for weeks ago.

I would like to have this semester reimbursed since I am still in an IEEP. As long as it is not for academic feasibility, which my grades have more than proven that I am not, then I am allowed to have the second semester while still in the IEEP.  Per M28R, Part IV, Section C, Chapter 3, states “… however, one additional academic term may be approved if the reason for the additional term is not solely for the purpose of determining academic potential. When considering if an additional academic term is appropriate, the VRC must:

 

      • Determine that additional diagnostic and/or evaluative services are needed

                  The panel has recommended more diagnostic testing, the psychiatric neurological meets this requirement

• Ensure that the second academic term is authorized in conjunction with these additional diagnostic and/or evaluative services

            This speaks for itself.

• Address all feasibility concerns during the second academic term

            Has not been done.

• Submit written documentation regarding the need for additional services that specifies how the additional services will assist in the determination of feasibility

            This is your offices job.

• Obtain concurrence from the VR&E Officer

            This is your offices job.

I have more than met this requirement. I would also request my monthly subsistence be restored, with back pay, since I am still in an IEEP, I should still be receiving my monthly subsistence and I am still in school full time.

Per 38 CFR 21.266, a Veteran participating in an extended evaluation program can receive a subsistence allowance. The allowance is paid in accordance with 38 CFR 21.260.

A Veteran in a program of extended evaluation or an Independent Living (IL) program may be paid a subsistence allowance for full, three-quarter, or half-time participation at the rate specified for institutional training in accordance with 38 CFR 21.260. The procedures for processing an original or amended award found in M28R.V.B.8 should be followed when processing subsistence allowance for Veterans participating in an extended evaluation or IL program.

I am asking for this to be reviewed and answered for. I cannot ask in a more direct way than this, so there is no ambiguity or reason for it to not be addressed or understood. I have met the requirements for these two items. If not, please advise why and cite your source so I can find the corresponding regulations. I do not believe there is a counter to these regulations.

Sincerely,

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Maybe Alex Graham will chime in.  He has had a few go arounds with the ILP program.  

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I hope so. I am really trying to shore up any possible way for them to keep doing this. They have yet to respond to my congressmans inquirey. 

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