Section 2 / Part 2
Effective Date: April 26, 2005

Eligibility

Synopsis of federal regulations

To determine whether an individual is eligible for vocational rehabilitation (VR) services and the individual's priority under an Order of Selection for services (if the State is operating under an Order of Selection), Rehabilitation Services (RS) will conduct an assessment for determining eligibility and priority for services. The assessment must be conducted in the most integrated setting possible, consistent with the individual's needs and informed choice, and in accordance with the following provisions:

Eligibility requirements: Determination of eligibility may be based only on the following requirements:
1. A determination by qualified personnel that the applicant has a physical or mental impairment.
2. A determination by qualified personnel that the applicant's physical or mental impairment constitutes or results in a substantial impediment to employment for the applicant.
3. A determination by a qualified VR counselor employed by RS that the applicant requires VR services to prepare for, secure, retain or regain employment consistent with the applicant's unique strengths, resources, priorities, concerns, abilities, capabilities, interests and informed choice.

Presumption of benefit: RS must presume that an applicant who meets the eligibility requirements in Numbers 1 and 2 above can benefit in terms of an employment outcome unless it demonstrates, based on clear and convincing evidence, that the applicant is incapable of benefiting in terms of an employment outcome from VR services due to the severity of the applicant's disability.

Presumption of eligibility for Social Security recipients and beneficiaries: Any applicant for VR services who has been determined eligible for Supplemental Security Income (SSI) or Social Security Disability Insurance (SSDI) is presumed eligible for VR services. Use of extended evaluation for the purpose of determining any aspect of eligibility is not permitted for applicants who are eligible for SSI or SSDI. Such an applicant is also considered to be an individual with a significant disability. If an applicant for VR services asserts that he or she is eligible for SSI or SSDI but is unable to provide appropriate evidence, such as an award letter, RS must verify SSI or SSDI eligibility by contacting the Social Security Administration. This verification must be made within a reasonable period of time that enables RS to determine the applicant's eligibility for VR within 60 days of application.

Review and assessment of data for eligibility determination: RS shall base its determination of each of the basic eligibility requirements on:
1. A review and assessment of existing data, including counselor observations, education records, information provided by the individual or the individual's family, information used by the Social Security Administration, and determinations made by officials of other agencies; and
2. To the extent existing data do not describe the current functioning of the individual or are unavailable, insufficient, or inappropriate to make an eligibility determination, an assessment of additional data resulting from the provision of VR services, including assistive technology devices and services and worksite assessments, that are necessary to determine whether an individual is eligible.

Extended evaluation for individuals with severe disabilities:
1. Prior to any determination that an individual with a severe disability is incapable of benefiting from VR services in terms of an employment outcome because of the severity of that individual's disability, RS shall conduct an extended evaluation to determine whether or not there is clear and convincing evidence to support such a determination.
2. During the extended evaluation period, which may not exceed 18 months, VR services must be provided in the most integrated setting possible, consistent with the informed choice of the individual.
3. During the extended evaluation period, RS shall develop a written plan for determining eligibility and for determining the nature and scope of services required to achieve an employment outcome. RS may provide during this period only those services that are necessary to make these two determinations.
4. RS shall assess the individual's progress as frequently as necessary, but at least once every 90 days, during the extended evaluation period.
5. RS shall terminate extended evaluation services at any point during the 18-month extended evaluation period if it is determined that:

- There is sufficient evidence to conclude that the individual can benefit from the provision of VR services in terms of an employment outcome; or
- There is clear and convincing evidence that the individual is incapable of benefiting from VR services in terms of an employment outcome.

Reference: §361.42

Regulatory guidance

"Clear and convincing evidence" means that RS must have a high degree of certainty before it can conclude that an individual is incapable of benefiting from services in terms of an employment outcome. The "clear and convincing" standard constitutes the highest standard used in the civil system of law and is to be individually applied on a case-by-case basis. The term "clear" means unequivocal. Given these requirements, a review of existing information generally would not provide clear and convincing evidence. For example, the use of an intelligence test result alone would not constitute clear and convincing evidence. Clear and convincing evidence might include a description of assessments, including situational assessments and supported employment assessments, from service providers who have concluded that they would be unable to meet the individual's needs due to the severity of the individual's disability. The demonstration of "clear and convincing evidence" must include, if appropriate, a functional assessment of skill development activities, with any necessary supports (including assistive technology), in real life settings.
Reference: Note following §361.42

RS policy

Existing records: Because of the time limitation for eligibility determination, the initial contacts with the applicant, significant others and/or referral source are especially important to determine what usable information is readily available and what other diagnostic procedures will need to be started immediately. If appropriate and possible, the applicant should assist in the information gathering process.

Eligibility certificate: The counselor must complete, sign and date a Certificate of Eligibility which documents that the applicant meets the eligibility criteria. In addition, the KMIS Certificate should be printed and filed in the record of services. The record of service must include information that supports the eligibility decision. (See Section 1 / Part 11, Record of Services.)