May 15, 1998

REGIONAL OFFICE MEMORANDUM NO. 98-34

SUBJECT:      RSA Policy Directive 97-04

Recently, the Commissioner of the Rehabilitation Services Administration sent a letter to the director of a state vocational rehabilitation agency. The letter responded to several concerns the director raised regarding RSA Policy Directive 97-04: Employment Goal for an Individual with a Disability.

The state agency director’s correspondence described five issues specific to the content of the Policy Directive. The following is the Commissioner’s response to each issue.

"Your first concern relates to the criteria for eligibility under the VR program. Specifically, you state that the PD implies that `individuals who are employed at the time of application for VR services are eligible for VR services regardless of whether their disability constitutes or results in a substantial impediment to employment' (as required under 34 CFR '361.42(a)(1)(ii)); and regardless of whether they require VR services to prepare for, enter, engage in, or retain gainful employment'(as required under '361.42(a)(1)(iv)).

While I believe that determining eligibility and identifying an eligible individual’s employment goal (addressed by PD 97-04) involve similar considerations, the PD does not indicate that VR

program eligibility is available for individuals who do not meet each of the eligibility criteria listed in title I of the Rehabilitation Act of 1973, as amended, (the Act) and 34 CFR '361.42(a).

PD 97-04 was developed to explain the statutory and regulatory standard for determining an appropriate employment goal for an individual eligible to receive services under the VR program and to rescind outdated RSA policy that is inconsistent with that standard. More specifically, the PD outlines the factors relevant to determining an employment goal in order to foster a key principle of the Act -- ensuring that eligible individuals, including underemployed individuals, receive VR services that they need to obtain competitive jobs for which they are both qualified-(i.e., possess the requisite strengths, resources, priorities, concerns, abilities and capabilities) and interested (i.e., the goal reflects the individual’s informed choice to the extent that choice is consistent with the individual’s strengths, resources, etc.).

PD 97-04 does not imply that currently employed individuals are automatically eligible to receive VR services. Rather, the PD explains, among other points, the standard for developing an employment goal for an eligible individual who might currently work in a job that does not reflect the person’s capabilities and informed choice. The PD, like the Act and regulations, recognizes, that `underemployed' individuals are eligible for VR services provided they meet the eligibility criteria under title I and 361.42, including the requirements that the individual’s disability constitutes a substantial impediment to employment and the individual requires VR services.

 

`Substantial impediment to employment' (for purposes of VR program eligibility under 34 CFR '361.42(a)(1)) is defined in '361.5(b)(44) to mean that a physical or mental impairment hinders an individual from preparing for, entering into, engaging in, or retaining employment consistent with the individual’s abilities and capabilities.  Similarly, the criterion under '361.42(a)(1)(iv) states that a VR-eligible individual must >require VR services to prepare for, enter into, engage in, or retain gainful employment consistent with the [individual’s ] strengths, resources, priorities, concerns, abilities, capabilities, and informed choice.=  Thus, an individual who is currently employed in a job that is not consistent with his or her abilities and capabilities, whose disability hinders his or her ability to secure such employment, and who needs VR services in order to obtain employment for which the individual is both qualified and interested, is likely eligible under title 1.

State VR agencies are critically important to assisting individuals with disabilities to reach their employment goals. In many instances, an individual with a disability who is already employed may not need financial assistance from the State agency to achieve a more appropriate employment outcome, but rather requires the VR agency’s expert assistance in negotiating the many obstacles that the individual might face when moving into a new and more challenging job. The above discussion should clarify, however, that current employment is neither a basis for automatically determining that an applicant is eligible to receive VR services nor a reason to find an individual ineligible under the VR program. As with determining an employment goal, applying the eligibility criteria must be done consistent with the statutory emphasis of assisting individuals with disabilities to obtain employment that they both value and can perform.

 

Your second concern is that the PD erroneously implies that new applicants under the VR program are entitled to VR services for purposes of `career advancement' and `upward mobility', while the Act and the regulations authorize only post-employment services for these purposes.

I find these assertions unduly restrictive and at odds with the statutory and regulatory principles outlined above. As previously mentioned, currently employed individuals may be eligible for VR services if their current job is not consistent with their strengths, resources, priorities, concerns, abilities, and capabilities (i.e., their primary employment factors). To the extent that is the case, VR agencies should assist individuals seeking to `advance' into careers that are consistent with their abilities, provided the individual meets the VR eligibility criteria as discussed above and the individual is capable of performing more advanced work. Although the citations you refer to (section 103(a)(2) of the Act) and ('361.5(b)(37) of the regulations) speak to the availability of limited post-employment services to enable a prior participant in the VR program to maintain, regain, or advance in employment, those references do not preclude a VR agency from assisting new applicants to obtain employment that is more challenging than their current work.

Your third concern is that the PD requires VR agencies to develop employment goals that `maximize' the individual’s employment potential, whereas the Act and regulations require only that the employment goal be consistent with the individual’s strengths, resources, priorities, Concerns, abilities, and capabilities.

I agree that section 103(a)(2) of the Act and '361.45(a) of the regulations identify the proper standard for determining an appropriate employment goal -- i.e., the goal must be consistent with the eligible individual’s primary employment factors. Given the emphasis the Act and the regulations place on informed choice (e.g., sections 102(b)(1)(13)(ii) and (x) of the Act, ''361.46(a)(1) and 361.52 of the regulations), the PD also explains that VR agencies should accommodate individual choice when that choice is consistent with the individual’s primary employment factors. In some instances, the determined goal may reflect the individual’s employment potential. In others, the individual might have the potential for engaging in more challenging work, but does not seek to move beyond his or her current job.

I find your fourth concern -- that the PD implies that `entry- level employment' is a `bad thing' -- inaccurate. As you mentioned in your letter, the PD supports the important policy of assisting individuals to obtain full-time competitive employment in the integrated labor market. I would add the clarification that the competitive job pursued by an eligible individual should be consistent with the person’s abilities and informed choice. An entry-level position is an entirely appropriate goal if it reflects the type of work that the individual is capable of performing or chooses to perform. The PD does not intend to make value judgements on the type of employment goal an eligible individual might pursue through the VR agency’s assistance. To do so would conflict with the individualized nature of the VR program.

 

Your last concern is that the PD equates `informed choice' with individual `desires' and that the Act and regulations require only that individuals make informed choices from `alternative goals.'

RSA has consistently maintained that `informed choice' does not mean unfettered choice on the part of the individual. This position is woven throughout PD 97-04. For example, the PD clearly states that although the individual’s informed choice is a key factor in identifying the employment goal, that choice must be consistent with the individual’s primary employment factors. Thus, an eligible individual is not entitled to pursue the job he or she desires if the person is not capable of performing the functions related to that job. The PD, however, does encourage State agencies to acquire performance-based information if is unclear whether the individual possesses the qualities necessary to perform a chosen goal. In any event, it would be inappropriate for a State VR agency to unilaterally predetermine a limited number of employment goals for an eligible individual and simply require the individual to select from among those goals. Such a policy that does not allow for consideration of the individual’s , priorities, concerns, and career interests would be inconsistent with both the Act and regulations, including the requirements governing individualized assessments, the individualized written rehabilitation program and informed choice.

While I agree that PD 97-04 addresses many complex issues, the fundamental principles articulated in the PD are intended to foster sound rehabilitation practice. Above all else, the PD speaks to genuine partnership through which professionally trained rehabilitation counselors assist individuals with disabilities to obtain high-quality employment outcomes. The process of providing services through this collaborative relationship is representative of the historic strength of the VR program."