Oregon Vocational Assistance – Authorization to Work in the US is No Longer a Requirement for Eligibility
An injured worker must meet certain conditions to be eligible for vocational assistance, typically the costliest aspect of a workers’ compensation claim. OAR 436-120-0145(2) lays out the specific requirements for a worker to be eligible for vocational retraining.
In reviewing that rule you may notice a significant change to the eligibility requirements. Effective July 1, 2024, OAR 436-120-0145(2) was amended to be more inclusive. Whereas the rule previously required the worker must be “authorized to work in the United States” to be eligible for vocational assistance, that language has since been removed from the rule. That means a worker’s work authorization status no longer impacts their eligibility for vocational assistance. This applies to vocational assistance eligibility evaluations after July 1, 2024.
However, the rule can be applied retroactively if a worker was found ineligible for vocational assistance solely on the basis that the worker was not authorized to work in the United States. In that scenario, a redetermination of eligibility must be performed as follows:
- Within 30 days of July 1, 2024, if the worker received the insurer’s notice of ineligibility or end of eligibility on or after December 30, 2024.
- Within 30 days of receipt of the worker’s second request for redetermination if the worker:
- Received the insurer’s notice of ineligibility or end of eligibility before December 30, 2023;
- Requested re-determination within six months of the date they received the insurer’s notice of ineligibility or end of eligibility.
- Submitted evidence to the insurer within six months of the date the worker received the insurer’s notice of eligibility or end of eligibility that the worker had applied for authorization to work in the United States and was awaiting a decision the US Citizenship and Immigration Services (USCIS); and
- Submitted a second request for redetermination on or after July 1, 2024. OAR 436-120-0175(2)(b).
- A worker who requests redetermination under subsection 2 above is not required to be authorized to work in the United States. However, the worker may not request redetermination after the 30th day from receipt of any decision by USCIS.
Workers who are not authorized to work in the US are only eligible for limited training programs as specified in OAR 436-120-0443, 436-120-0445, 436-120-0500, and 436-120-0510. The following are specifically excluded from limited training programs:
- On-the-job training;
- Direct employment services;
- Job placement services;
- Return-to-work monitoring;
- Return to work services. OAR 436-120-0511(3).
Finally, if a worker becomes authorized to work in the US before or during a limited training plan, the insurer must reconsider the category of vocational assistance. OAR 436-120-0511(4).
This expansion of the eligibility requirements means more workers will be found eligible for retraining. The associated increase in exposure must be factored in when adjusting reserves and valuing a claim for settlement.
If you have any questions about how this change will impact your vocational eligibility evaluations, please feel free to contact me at (503) 412-3116 or .
Posted by Courtney Kreutz.
