361.43 Procedures for ineligibility determination.
If the State unit determines that an applicant is ineligible for vocational rehabilitation services or determines that an individual receiving services under an individualized plan for employment is no longer eligible for services, the State unit must--
(a) Make the determination only after providing an opportunity for full consultation with the individual or, as appropriate, with the individuals representative;
(b) Inform the individual in writing, supplemented as necessary by other appropriate modes of communication consistent with the informed choice of the individual, of the ineligibility determination, including the reasons for that determination, the requirements under this section, and the means by which the individual may express and seek remedy for any dissatisfaction, including the procedures for review of State unit personnel determinations in accordance with 361.57;
(c) Provide the individual with a description of services available from a client assistance program established under 34 CFR part 370 and information on how to contact that program;
(d) Refer the individual to other training or employment-related programs that are part of the One-Stop service delivery system under the Workforce Investment Act; and
(e) Review within 12 months and annually thereafter if requested by the individual or, if appropriate, by the individuals representative any ineligibility determination that is based on a finding that the individual is incapable of achieving an employment outcome. This review need not be conducted in situations in which the individual has refused it, the individual is no longer present in the State, the individuals whereabouts are unknown, or the individuals medical condition is rapidly progressive or terminal.
(Authority: Sections 102(a)(5) and 102(c) of the Act; 29 U.S.C. 722(a)(5) and 722(c))
361.44 Closure without eligibility determination.
The designated State unit may not close an applicants record of services prior to making an eligibility determination unless the applicant declines to participate in, or is unavailable to complete, an assessment for determining eligibility and priority for services, and the State unit has made a reasonable number of attempts to contact the applicant or, if appropriate, the applicants representative to encourage the applicants participation.
(Authority: Section 12(c) of the Act; 29 U.S.C. 709(c))
361.45 Development of the individualized plan for employment.
(a) General requirements. The State plan must assure that--
(1) An individualized plan for employment (IPE) meeting the requirements of this section and 361.46 is developed and implemented in a timely manner for each individual determined to be eligible for vocational rehabilitation services or, if the designated State unit is operating under an order of selection in accordance with 361.36, for each eligible individual to whom the State unit is able to provide services; and
(2) Services will be provided in accordance with the provisions of the IPE.
(1) The designated State unit must conduct an assessment for determining vocational rehabilitation needs, if appropriate, for each eligible individual or, if the State is operating under an order of selection, for each eligible individual to whom the State is able to provide services. The purpose of this assessment is to determine the employment outcome, and the nature and scope of vocational rehabilitation services to be included in the IPE.
(2) The IPE must--
(i) Be designed to achieve the specific employment outcome that is selected by the individual consistent with the individuals unique strengths, resources, priorities, concerns, abilities, capabilities, interests, and informed choice; and
(ii) To the maximum extent appropriate, result in employment in an integrated setting.
(c) Required information. The State unit must provide the following information to each eligible individual or, as appropriate, the individual=s representative, in writing and, if appropriate, in the native language or mode of communication of the individual or the individual=s representative:
(1) Options for developing an IPE. Information on the available options for developing the IPE, including the option that an eligible individual or, as appropriate, the individual=s representative may develop all or part of the IPE--
(i) Without assistance from the State unit or other entity; or
(ii) With assistance from--
(A) A qualified vocational rehabilitation counselor employed by the State unit;
(B) A qualified vocational rehabilitation counselor who is not employed by the State unit; or
(C) Resources other than those in paragraph (A) or (B) of this section.
(2) Additional information. Additional information to assist the eligible individual or, as appropriate, the individual=s representative in developing the IPE, including--
(i) Information describing the full range of components that must be included in an IPE;
(ii) As appropriate to each eligible individual--
(A) An explanation of agency guidelines and criteria for determining an eligible individual=s financial commitments under an IPE;
(B) Information on the availability of assistance in completing State unit forms required as part of the IPE; and
(C) Additional information that the eligible individual requests or the State unit determines to be necessary to the development of the IPE;
(iii) A description of the rights and remedies available to the individual, including, if appropriate, recourse to the processes described in 361.57; and
(iv) A description of the availability of a client assistance program established under 34 CFR part 370 and information on how to contact the client assistance program.
(d) Mandatory procedures. The designated State unit must ensure that--
(1) The IPE is a written document prepared on forms provided by the State unit;
(2) The IPE is developed and implemented in a manner that gives eligible individuals the opportunity to exercise informed choice, consistent with 361.52, in selecting--
(i) The employment outcome, including the employment setting;
(ii) The specific vocational rehabilitation services needed to achieve the employment outcome, including the settings in which services will be provided;
(iii) The entity or entities that will provide the vocational rehabilitation services; and
(iv) The methods available for procuring the services;
(3) The IPE is--
(i) Agreed to and signed by the eligible individual or, as appropriate, the individual=s representative; and
(ii) Approved and signed by a qualified vocational rehabilitation counselor employed by the designated State unit;
(4) A copy of the IPE and a copy of any amendments to the IPE are provided to the eligible individual or, as appropriate, to the individual=s representative, in writing and, if appropriate, in the native language or mode of communication of the individual or, as appropriate, the individual=s representative;
(5) The IPE is reviewed at least annually by a qualified vocational rehabilitation counselor and the eligible individual or, as appropriate, the individual=s representative to assess the eligible individual=s progress in achieving the identified employment outcome;
(6) The IPE is amended, as necessary, by the individual or, as appropriate, the individual=s representative, in collaboration with a representative of the State unit or a qualified vocational rehabilitation counselor (to the extent determined to be appropriate by the individual), if there are substantive changes in the employment outcome, the vocational rehabilitation services to be provided, or the providers of the vocational rehabilitation services;
(7) Amendments to the IPE do not take effect until agreed to and signed by the eligible individual or, as appropriate, the individual=s representative and by a qualified vocational rehabilitation counselor employed by the designated State unit; and
(8) An IPE for a student with a disability receiving special education services is developed--
(i) In consideration of the student=s IEP; and
(ii) In accordance with the plans, policies, procedures, and terms of the interagency agreement required under 361.22.
(e) Standards for developing the IPE. The designated State unit must establish and implement standards for the prompt development of IPEs for the individuals identified under paragraph (a) of this section, including timelines that take into consideration the needs of the individuals.
(f) Data for preparing the IPE.
(1) Preparation without comprehensive assessment. To the extent possible, the employment outcome and the nature and scope of rehabilitation services to be included in the individuals IPE must be determined based on the data used for the assessment of eligibility and priority for services under 361.42.
(2) Preparation based on comprehensive assessment.
(i) If additional data are necessary to determine the employment outcome and the nature and scope of services to be included in the IPE of an eligible individual, the State unit 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 361.5(b)(6)(ii).
(ii) In preparing the comprehensive assessment, the State unit 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 officials and the Social Security Administration;
(B) Information provided by the individual and the individuals family; and
(C) Information obtained under the assessment for determining the individuals eligibility and vocational rehabilitation needs.
(Authority: Sections 7(2)(B),101(a)(9), 102(b)(1), 102(b)(2), 102(c) and 103(a)(1); 29 U.S.C. 705(2)(B), 721(a)(9), 722(b)(1), 722(b)(2), 722(c) and 723(a)(1))
361.46 Content of the individualized plan for employment.
(a) Mandatory components. Regardless of the approach in 361.45(c)(1) that an eligible individual selects for purposes of developing the IPE, each IPE must include--
(1) A description of the specific employment outcome that is chosen by the eligible individual that--
(i) Is consistent with the individual=s unique strengths, resources, priorities, concerns, abilities, capabilities, career interests, and informed choice; and
(ii) To the maximum extent appropriate, results in employment in an integrated setting;
(2) A description of the specific rehabilitation services under 361.48 that are--
(i) Needed to achieve the employment outcome, including, as appropriate, the provision of assistive technology devices, assistive technology services, and personal assistance services, including training in the management of those services; and
(ii) Provided in the most integrated setting that is appropriate for the services involved and is consistent with the informed choice of the eligible individual;
(3) Timelines for the achievement of the employment outcome and for the initiation of services;
(4) A description of the entity or entities chosen by the eligible individual or, as appropriate, the individual=s representative that will provide the vocational rehabilitation services and the methods used to procure those services;
(5) A description of the criteria that will be used to evaluate progress toward achievement of the employment outcome; and
(6) The terms and conditions of the IPE, including, as appropriate, information describing--
(i) The responsibilities of the designated State unit;
(ii) The responsibilities of the eligible individual, including--
(A) The responsibilities the individual will assume in relation to achieving the employment outcome;
(B) If applicable, the extent of the individuals participation in paying for the cost of services; and
(C) The responsibility of the individual with regard to applying for and securing comparable services and benefits as described in 361.53; and
(iii) The responsibilities of other entities as the result of arrangements made pursuant to the comparable services or benefits requirements in 361.53.
(b) Supported employment requirements. An IPE for an individual with a most significant disability for whom an employment outcome in a supported employment setting has been determined to be appropriate must--
(1) Specify the supported employment services to be provided by the designated State unit;
(2) Specify the expected extended services needed, which may include natural supports;
(3) Identify the source of extended services or, to the extent that it is not possible to identify the source of extended services at the time the IPE is developed, include a description of the basis for concluding that there is a reasonable expectation that those sources will become available;
(4) Provide for periodic monitoring to ensure that the individual is making satisfactory progress toward meeting the weekly work requirement established in the IPE by the time of transition to extended services;
(5) Provide for the coordination of services provided under an IPE with services provided under other individualized plans established under other Federal or State programs;
(6) To the extent that job skills training is provided, identify that the training will be provided on site; and
(7) Include placement in an integrated setting for the maximum number of hours possible based on the unique strengths, resources, priorities, concerns, abilities, capabilities, interests, and informed choice of individuals with the most significant disabilities.
(c) Post-employment services. The IPE for each individual must contain, as determined to be necessary, statements concerning--
(1) The expected need for post-employment services prior to closing the record of services of an individual who has achieved an employment outcome;
(2) A description of the terms and conditions for the provision of any post-employment services; and
(3) If appropriate, a statement of how post-employment services will be provided or arranged through other entities as the result of arrangements made pursuant to the comparable services or benefits requirements in 361.53.
(d) Coordination of services for students with disabilities who are receiving special education services. The IPE for a student with a disability who is receiving special education services must be coordinated with the IEP for that individual in terms of the goals, objectives, and services identified in the IEP.
(Authority: Sections 101(a)(8), 101(a)(9), 102(b)(3), and 625(b)(6) of the Act; 29 U.S.C. 721(a)(8), 721(a)(9), 722(b)(3), and 795(k))
(a) The designated State unit must maintain for each applicant and eligible individual a record of services that includes, to the extent pertinent, the following documentation:
(1) If an applicant has been determined to be an eligible individual, documentation supporting that determination in accordance with the requirements under 361.42.
(2) If an applicant or eligible individual receiving services under an IPE has been determined to be ineligible, documentation supporting that determination in accordance with the requirements under 361.43.
(3) Documentation that describes the justification for closing an applicant=s or eligible individual=s record of services if that closure is based on reasons other than ineligibility, including, as appropriate, documentation indicating that the State unit has satisfied the requirements in 361.44.
(4) If an individual has been determined to be an individual with a significant disability or an individual with a most significant disability, documentation supporting that determination.
(5) If an individual with a significant disability requires an exploration of abilities, capabilities, and capacity to perform in realistic work situations through the use of trial work experiences or, as appropriate, an extended evaluation to determine whether the individual is an eligible individual, documentation supporting the need for, and the plan relating to, that exploration or, as appropriate, extended evaluation and documentation regarding the periodic assessments carried out during the trial work experiences or, as appropriate, the extended evaluation, in accordance with the requirements under 361.42(e) and (f).
(6) The IPE, and any amendments to the IPE, consistent with the requirements under 361.46.
(7) Documentation describing the extent to which the applicant or eligible individual exercised informed choice regarding the provision of assessment services and the extent to which the eligible individual exercised informed choice in the development of the IPE with respect to the selection of the specific employment outcome, the specific vocational rehabilitation services needed to achieve the employment outcome, the entity to provide the services, the employment setting, the settings in which the services will be provided, and the methods to procure the services.
(8) In the event that the IPE provides for services or an employment outcome in a non-integrated setting, a justification to support the non-integrated setting.
(9) In the event that an individual obtains competitive employment, verification that the individual is compensated at or above the minimum wage and that the individual=s wage and level of benefits are not less than that customarily paid by the employer for the same or similar work performed by non-disabled individuals in accordance with 361.5(b)(11)(ii).
(10) In the event that an individual obtains an employment outcome in an extended employment setting in a community rehabilitation program or any other employment under section 14(c) of the Fair Labor Standards Act, documentation of the results of the annual reviews required under 361.55, the individual=s input into those reviews, and the individual=s or, if appropriate, the individual=s representative=s acknowledgement that those reviews were conducted.
(11) Documentation concerning any action or decision resulting from a request by an individual under 361.57 for a review of determinations made by designated State unit personnel.
(12) In the event that an applicant or eligible individual requests under 361.38(c)(4) that documentation in the record of services be amended and the documentation is not amended, documentation of the request.
(13) In the event an individual is referred to another program through the State unit=s information and referral system under 361.37, including other components of the statewide workforce investment system, documentation on the nature and scope of services provided by the designated State unit to the individual and on the referral itself, consistent with the requirements of 361.37.
(14) In the event an individual=s record of service is closed under 361.56, documentation that demonstrates the services provided under the individual=s IPE contributed to the achievement of the employment outcome.
(15) In the event an individual=s record of service is closed under 361.56, documentation verifying that the provisions of 361.56 have been satisfied.
(b) The State unit, in consultation with the State Rehabilitation Council if the State has a Council, must determine the type of documentation that the State unit must maintain for each applicant and eligible individual in order to meet the requirements in paragraph (a) of this section.
(Authority: Sections 101(a)(6),(9),(14),(20) and 102(a),(b), and (d) of the Act; 29 U.S.C. 721(a)(6),(9),(14), (20) and 722(a),(b), and (d))
361.48 Scope of vocational rehabilitation services for individuals with disabilities.
As appropriate to the vocational rehabilitation needs of each individual and consistent with each individuals informed choice, the designated State unit must ensure that the following vocational rehabilitation services are available to assist the individual with a disability in preparing for, securing, retaining, or regaining an employment outcome that is consistent with the individual=s strengths, resources, priorities, concerns, abilities, capabilities, interests, and informed choice:
(a) Assessment for determining eligibility and priority for services by qualified personnel, including, if appropriate, an assessment by personnel skilled in rehabilitation technology, in accordance with 361.42.
(b) Assessment for determining vocational rehabilitation needs by qualified personnel, including, if appropriate, an assessment by personnel skilled in rehabilitation technology, in accordance with 361.45.
(c) Vocational rehabilitation counseling and guidance, including information and support services to assist an individual in exercising informed choice in accordance with 361.52.
(d) Referral and other services necessary to assist applicants and eligible individuals to secure needed services from other agencies, including other components of the statewide workforce investment system, in accordance with 361.23, 361.24, and 361.37, and to advise those individuals about client assistance programs established under 34 CFR part 370.
(e) In accordance with the definition in 361.5(b)(40), physical and mental restoration services, to the extent that financial support is not readily available from a source other than the designated State unit (such as through health insurance or a comparable service or benefit as defined in 361.5(b)(10)).
(f) Vocational and other training services, including personal and vocational adjustment training, books, tools, and other training materials, except that no training or training services in an institution of higher education (universities, colleges, community or junior colleges, vocational schools, technical institutes, or hospital schools of nursing) may be paid for with funds under this part unless maximum efforts have been made by the State unit and the individual to secure grant assistance in whole or in part from other sources to pay for that training.
(g) Maintenance, in accordance with the definition of that term in 361.5(b)(35).
(h) Transportation in connection with the rendering of any vocational rehabilitation service and in accordance with the definition of that term in 361.5(b)(57).
(i) Vocational rehabilitation services to family members, as defined in 361.5(b)(23), of an applicant or eligible individual if necessary to enable the applicant or eligible individual to achieve an employment outcome.
(j) Interpreter services, including sign language and oral interpreter services, for individuals who are deaf or hard of hearing and tactile interpreting services for individuals who are deaf-blind provided by qualified personnel.
(k) Reader services, rehabilitation teaching services, and orientation and mobility services for individuals who are blind.
(l) Job-related services, including job search and placement assistance, job retention services, follow-up services, and follow-along services.
(m) Supported employment services in accordance with the definition of that term in 361.5(b)(54).
(n) Personal assistance services in accordance with the definition of that term in 361.5(b)(39).
(o) Post-employment services in accordance with the definition of that term in 361.5(b)(42).
(p) Occupational licenses, tools, equipment, initial stocks, and supplies.
(q) Rehabilitation technology in accordance with the definition of that term in 361.5(b)(45), including vehicular modification, telecommunications, sensory, and other technological aids and devices.
(r) Transition services in accordance with the definition of that term in 361.5(b)(55).
(s) Technical assistance and other consultation services to conduct market analyses, develop business plans, and otherwise provide resources, to the extent those resources are authorized to be provided through the statewide workforce investment system, to eligible individuals who are pursuing self-employment or telecommuting or establishing a small business operation as an employment outcome.
(t) Other goods and services determined necessary for the individual with a disability to achieve an employment outcome.
(Authority: Section 103(a) of the Act; 29 U.S.C. 723(a))
361.49 Scope of vocational rehabilitation services for groups of individuals with disabilities.
(a) The designated State unit may also provide for the following vocational rehabilitation services for the benefit of groups of individuals with disabilities:
(1) The establishment, development, or improvement of a public or other nonprofit community rehabilitation program that is used to provide vocational rehabilitation services that promote integration and competitive employment, including, under special circumstances, the construction of a facility for a public or nonprofit community rehabilitation program. Examples of "special circumstances" include the destruction by natural disaster of the only available center serving an area or a State determination that construction is necessary in a rural area because no other public agencies or private nonprofit organizations are currently able to provide vocational rehabilitation services to individuals.
(2) Telecommunications systems that have the potential for substantially improving vocational rehabilitation service delivery methods and developing appropriate programming to meet the particular needs of individuals with disabilities, including telephone, television, video description services, satellite, tactile-vibratory devices, and similar systems, as appropriate.
(3) Special services to provide nonvisual access to information for individuals who are blind, including the use of telecommunications, Braille, sound recordings, or other appropriate media; captioned television, films, or video cassettes for individuals who are deaf or hard of hearing; tactile materials for individuals who are deaf-blind; and other special services that provide information through tactile, vibratory, auditory, and visual media.
(4) Technical assistance and support services to businesses that are not subject to Title I of the Americans with Disabilities Act of 1990 and that are seeking to employ individuals with disabilities.
(5) In the case of any small business enterprise operated by individuals with significant disabilities under the supervision of the designated State unit, including enterprises established under the Randolph-Sheppard program, management services and supervision provided by the State unit along with the acquisition by the State unit of vending facilities or other equipment, initial stocks and supplies, and initial operating expenses, in accordance with the following requirements:
(i) "Management services and supervision" includes inspection, quality control, consultation, accounting, regulating, in-service training, and related services provided on a systematic basis to support and improve small business enterprises operated by individuals with significant disabilities. "Management services and supervision" may be provided throughout the operation of the small business enterprise.
(ii) "Initial stocks and supplies" includes those items necessary to the establishment of a new business enterprise during the initial establishment period, which may not exceed 6 months.
(iii) Costs of establishing a small business enterprise may include operational costs during the initial establishment period, which may not exceed 6 months.
(iv) If the designated State unit provides for these services, it must ensure that only individuals with significant disabilities will be selected to participate in this supervised program.
(v) If the designated State unit provides for these services and chooses to set aside funds from the proceeds of the operation of the small business enterprises, the State unit must maintain a description of the methods used in setting aside funds and the purposes for which funds are set aside. Funds may be used only for small business enterprises purposes, and benefits that are provided to operators from set-aside funds must be provided on an equitable basis.
(6) Other services that promise to contribute substantially to the rehabilitation of a group of individuals but that are not related directly to the individualized plan for employment of any one individual. Examples of those other services might include the purchase or lease of a bus to provide transportation to a group of applicants or eligible individuals or the purchase of equipment or instructional materials that would benefit a group of applicants or eligible individuals.
(7) Consultative and technical assistance services to assist educational agencies in planning for the transition of students with disabilities from school to post-school activities, including employment.
(b) If the designated State unit provides for vocational rehabilitation services for groups of individuals, it must--
(1) Develop and maintain written policies covering the nature and scope of each of the vocational rehabilitation services it provides and the criteria under which each service is provided; and
(2) Maintain information to ensure the proper and efficient administration of those services in the form and detail and at the time required by the Secretary, including the types of services provided, the costs of those services, and, to the extent feasible, estimates of the numbers of individuals benefiting from those services.
(Authority: Sections 12(c), 101(a)(6)(A), and 103(b) of the Act; 29 U.S.C. 709(c), 721(a)(6), and 723(b))
361.50 Written policies governing the provision of services for individuals with disabilities.
(a) Policies. The State unit must develop and maintain written policies covering the nature and scope of each of the vocational rehabilitation services specified in 361.48 and the criteria under which each service is provided. The policies must ensure that the provision of services is based on the rehabilitation needs of each individual as identified in that individuals IPE and is consistent with the individuals informed choice. The written policies may not establish any arbitrary limits on the nature and scope of vocational rehabilitation services to be provided to the individual to achieve an employment outcome. The policies must be developed in accordance with the following provisions:
(b) Out-of-State services.
(1) The State unit may establish a preference for in-State services, provided that the preference does not effectively deny an individual a necessary service. If the individual chooses an out-of-State service at a higher cost than an in-State service, if either service would meet the individuals rehabilitation needs, the designated State unit is not responsible for those costs in excess of the cost of the in-State service.
(2) The State unit may not establish policies that effectively prohibit the provision of out-of-State services.
(c) Payment for services.
(1) The State unit must establish and maintain written policies to govern the rates of payment for all purchased vocational rehabilitation services.
(2) The State unit may establish a fee schedule designed to ensure a reasonable cost to the program for each service, if the schedule is--
(i) Not so low as to effectively deny an individual a necessary service; and
(ii) Not absolute and permits exceptions so that individual needs can be addressed.
(3) The State unit may not place absolute dollar limits on specific service categories or on the total services provided to an individual.
(d) Duration of services.
(1) The State unit may establish reasonable time periods for the provision of services provided that the time periods are‑‑
(i) Not so short as to effectively deny an individual a necessary service; and
(ii) Not absolute and permit exceptions so that individual needs can be addressed.
(2) The State unit may not establish absolute time limits on the provision of specific services or on the provision of services to an individual. The duration of each service needed by an individual must be determined on an individual basis and reflected in that individuals individualized plan for employment.
(e) Authorization of services. The State unit must establish policies related to the timely authorization of services, including any conditions under which verbal authorization can be given.
(Authority: Sections 12(c) and 101(a)(6) of the Act and 29 U.S.C. 709(c) and 721(a)(6))