2.21.1427 CERTIFICATION OF PERSONS WITH DISABILITIES
provided in 39-30-107, MCA, "the department of public health and human
services shall certify persons with disabilities for the purpose of employment
(2) In order to be eligible for employment
preference, a person with a disability must be certified by the department of
public health and human services to have, as provided in 39-30-103, MCA, a
"physical or mental impairment that substantially limits one or more major
life activities, such as writing, seeing, hearing, speaking, or mobility, and
which limits the individual's ability to obtain, retain, or advance in
employment." The certification
process may also consider impairments which limit an individual's ability to
know or reason; or an individual's ability to make a choice or decision. The person with a disability shall have a
professional diagnosis establishing the disabling condition. Medical evidence
shall be provided by a licensed physician or a licensed practitioner competent
to treat and diagnose the particular disabling condition.
disabling condition will be individually evaluated on a case-by-case basis to
determine eligibility for employment preference with the exception of those
persons specifically excluded in this rule.
(4) As provided in 39-30-103, MCA, "the term
mental impairment does not include alcoholism or drug addiction and does not
include any mental impairment, disease, or defect that has been asserted by the
individual claiming the preference as a defense to any criminal charge."
(5) The department of public health and human
services will establish a process and standards for certifying persons with
disabilities for employment preference.
The process shall include, but is not limited to:
(a) a determination established by a professional
medical diagnosis that the person has a physical or mental impairment as
defined by these rules; and
(b) a determination that the physical or mental
impairment substantially limits one or more major life activities and as a
consequence of the disability, the person's ability to obtain, retain, or
advance in employment is substantially limited; or
(c) a determination by the counselor and medical
consultant designated by the department of public health and human services
that the disability is so severe or apparent that it has lead to or could lead
to employment discrimination which would substantially limit the person's
ability to obtain, retain, or advance in employment; or
(d) a determination that the person with a
disability is totally disabled, is unable to use the preference because of the
disability and therefore the person's spouse is eligible for preference.
(6) Each determination will be provided in writing
in a standard form as established by the department of public health and human
services. The written notice shall
include a statement regarding the duration of the certification. The written notice shall be provided to the
person with a disability within 30 days of the receipt of all information
necessary to make the certification decision.
process shall allow for permanent certification of those impairments (in the
judgment of the counselor and medical consultant designated by the department
of public health and human services) considered to be permanent and shall allow
for loss of certification for those impairments which may be considered
(8) The person requesting certification by the
department of public health and human services is responsible for providing all
information necessary to document the claim to be certified for employment
preference. All costs of obtaining the
necessary information, including medical evidence to substantiate the claim,
are the responsibility of the person requesting the certification.
(9) The written notice of certification for an
eligible spouse must clearly state the preference-eligible person is an
(10) The department of public health and human
services shall ensure the confidentiality of information gathered when making
employment preference determination in accordance with federal and state law
and as provided in ARM 2.21.1424.
person with a disability, as provided in 39-30-103, MCA, who is dissatisfied
with the department of public health and human services' certification decision
regarding eligibility for employment preference, shall be advised of the right
to file a request for an administrative review of that action and right to a
fair hearing if dissatisfied with the outcome of the administrative
review. The administrative review
shall be conducted by the administrator of vocational rehabilitative services
division or a designee. The fair
hearing shall be conducted in accordance with the fair hearing rules of the
department of public health and human services as provided for in ARM 46.2.201
History: 39-30-106, MCA; IMP, 39-30-103 and 39-30-107, MCA; NEW, 1984 MAR p. 425, Eff. 3/16/84; AMD, 1997 MAR p. 2277, Eff. 12/16/97.