34 CFR 361.42 - Assessment for determining eligibility and priority for services.

Status message

There is 1 rule appearing in the Federal Register for 34 CFR Part 361. View below or at eCFR (GPOAccess)
§ 361.42 Assessment for determining eligibility and priority for services.
In order to determine whether an individual is eligible for vocational rehabilitation services and the individual's priority under an order of selection for services (if the State is operating under an order of selection), the designated State unit must 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:
(a) Eligibility requirements—
(1) Basic requirements. The designated State unit's determination of an applicant's eligibility for vocational rehabilitation services must be based only on the following requirements:
(i) A determination by qualified personnel that the applicant has a physical or mental impairment.
(ii) 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.
(iii) A determination by a qualified vocational rehabilitation counselor employed by the designated State unit that the applicant requires vocational rehabilitation 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.
(iv) A presumption, in accordance with paragraph (a)(2) of this section, that the applicant can benefit in terms of an employment outcome from the provision of vocational rehabilitation services.
(2) Presumption of benefit. The designated State unit must presume that an applicant who meets the eligibility requirements in paragraphs (a)(1)(i) and (ii) of this section 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 vocational rehabilitation services due to the severity of the applicant's disability.
(3) Presumption of eligibility for Social Security recipients and beneficiaries.
(i) Any applicant who has been determined eligible for Social Security benefits under Title II or Title XVI of the Social Security Act is—
(A) Presumed eligible for vocational rehabilitation services under paragraphs (a)(1) and (2) of this section; and
(B) Considered an individual with a significant disability as defined in § 361.5(b)(31).
(ii) If an applicant for vocational rehabilitation services asserts that he or she is eligible for Social Security benefits under Title II or Title XVI of the Social Security Act (and, therefore, is presumed eligible for vocational rehabilitation services under paragraph (a)(3)(i)(A) of this section), but is unable to provide appropriate evidence, such as an award letter, to support that assertion, the State unit must verify the applicant's eligibility under Title II or Title XVI of the Social Security Act by contacting the Social Security Administration. This verification must be made within a reasonable period of time that enables the State unit to determine the applicant's eligibility for vocational rehabilitation services within 60 days of the individual submitting an application for services in accordance with § 361.41(b)(2).
(4) Achievement of an employment outcome. Any eligible individual, including an individual whose eligibility for vocational rehabilitation services is based on the individual being eligible for Social Security benefits under Title II or Title XVI of the Social Security Act, must intend to achieve an employment outcome that is consistent with the applicant's unique strengths, resources, priorities, concerns, abilities, capabilities, interests, and informed choice.
(i) The State unit is responsible for informing individuals, through its application process for vocational rehabilitation services, that individuals who receive services under the program must intend to achieve an employment outcome.
(ii) The applicant's completion of the application process for vocational rehabilitation services is sufficient evidence of the individual's intent to achieve an employment outcome, and no additional demonstration on the part of the applicant is required for purposes of satisfying paragraph (a)(4) of this section.
(5) Interpretation. Nothing in this section, including paragraph (a)(3)(i), is to be construed to create an entitlement to any vocational rehabilitation service.
(b) Interim determination of eligibility.
(1) The designated State unit may initiate the provision of vocational rehabilitation services for an applicant on the basis of an interim determination of eligibility prior to the 60-day period described in § 361.41(b)(2).
(2) If a State chooses to make interim determinations of eligibility, the designated State unit must—
(i) Establish criteria and conditions for making those determinations;
(ii) Develop and implement procedures for making the determinations; and
(iii) Determine the scope of services that may be provided pending the final determination of eligibility.
(3) If a State elects to use an interim eligibility determination, the designated State unit must make a final determination of eligibility within 60 days of the individual submitting an application for services in accordance with § 361.41(b)(2).
(c) Prohibited factors.
(1) The State plan must assure that the State unit will not impose, as part of determining eligibility under this section, a duration of residence requirement that excludes from services any applicant who is present in the State.
(2) In making a determination of eligibility under this section, the designated State unit also must ensure that—
(i) No applicant or group of applicants is excluded or found ineligible solely on the basis of the type of disability; and
(ii) The eligibility requirements are applied without regard to the—
(A) Age, gender, race, color, or national origin of the applicant;
(B) Type of expected employment outcome;
(C) Source of referral for vocational rehabilitation services; and
(D) Particular service needs or anticipated cost of services required by an applicant or the income level of an applicant or applicant's family.
(d) Review and assessment of data for eligibility determination. Except as provided in paragraph (e) of this section, the designated State unit—
(1) Must base its determination of each of the basic eligibility requirements in paragraph (a) of this section on—
(i) A review and assessment of existing data, including counselor observations, education records, information provided by the individual or the individual's family, particularly information used by education officials, and determinations made by officials of other agencies; and
(ii) 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 vocational rehabilitation services, including trial work experiences, assistive technology devices and services, personal assistance services, and any other support services that are necessary to determine whether an individual is eligible; and
(2) Must base its presumption under paragraph (a)(3)(i) of this section that an applicant who has been determined eligible for Social Security benefits under Title II or Title XVI of the Social Security Act satisfies each of the basic eligibility requirements in paragraph (a) of this section on determinations made by the Social Security Administration.
(e) Trial work experiences for individuals with significant disabilities.
(1) Prior to any determination that an individual with a disability is incapable of benefiting from vocational rehabilitation services in terms of an employment outcome because of the severity of that individual's disability, the designated State unit must conduct an exploration of the individual's abilities, capabilities, and capacity to perform in realistic work situations to determine whether or not there is clear and convincing evidence to support such a determination.
(2)
(i) The designated State unit must develop a written plan to assess periodically the individual's abilities, capabilities, and capacity to perform in work situations through the use of trial work experiences, which must be provided in the most integrated setting possible, consistent with the informed choice and rehabilitation needs of the individual.
(ii) Trial work experiences include supported employment, on-the-job training, and other experiences using realistic work settings.
(iii) Trial work experiences must be of sufficient variety and over a sufficient period of time for the designated State unit to determine that—
(A) There is sufficient evidence to conclude that the individual can benefit from the provision of vocational rehabilitation services in terms of an employment outcome; or
(B) There is clear and convincing evidence that the individual is incapable of benefiting from vocational rehabilitation services in terms of an employment outcome due to the severity of the individual's disability.
(iv) The designated State unit must provide appropriate supports, including assistive technology devices and services and personal assistance services, to accommodate the rehabilitation needs of the individual during the trial work experiences.
(f) Extended evaluation for certain individuals with significant disabilities.
(1) Under limited circumstances if an individual cannot take advantage of trial work experiences or if options for trial work experiences have been exhausted before the State unit is able to make the determinations described in paragraph (e)(2)(iii) of this section, the designated State unit must conduct an extended evaluation to make these determinations.
(2) During the extended evaluation period, vocational rehabilitation services must be provided in the most integrated setting possible, consistent with the informed choice and rehabilitation needs of the individual.
(3) During the extended evaluation period, the designated State unit must develop a written plan for providing services necessary to make a determination under paragraph (e)(2)(iii) of this section.
(4) During the extended evaluation period, the designated State unit provides only those services that are necessary to make the determinations described in paragraph (e)(2)(iii) of this section and terminates extended evaluation services when the State unit is able to make the determinations.
(g) Data for determination of priority for services under an order of selection. If the designated State unit is operating under an order of selection for services, as provided in § 361.36, the State unit must base its priority assignments on—
(1) A review of the data that was developed under paragraphs (d) and (e) of this section to make the eligibility determination; and
(2) An assessment of additional data, to the extent necessary.
(Authority: Sections 7(2)(A), 7(2)(B)(ii)(I), 7(2)(C), 7(2)(D), 101(a)(12), 102(a)(1), 102(a)(2), 102(a)(3), 102(a)(4)(A), 102(a)(4)(B), 102(a)(4)(C), 103(a)(1), 103(a)(9), 103(a)(10) and 103(a)(14) of the Act; 29 U.S.C. 705(2)(A), 705(2)(B)(ii)(I), 705(2)(C), 705(2)(D), 721(a)(12), 722(a)(1), 722(a)(2), 722(a)(3), 722(a)(4)(A), 722(a)(4)(B), 722(a)(4)(C), 723(a)(1), 723(a)(9), 723(a)(10) and 723(a)(14))
Note to § 361.42:
Clear and convincing evidence means that the designated State unit shall 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 our civil system of law and is to be individually applied on a case-by-case basis. The term clear means unequivocal. 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. (S. Rep. No. 357, 102d Cong., 2d. Sess. 37-38 (1992))

Title 34 published on 2014-07-01.

The following are only the Rules published in the Federal Register after the published date of Title 34.

For a complete list of all Rules, Proposed Rules, and Notices view the Rulemaking tab.

  • 2014-12-19; vol. 79 # 244 - Friday, December 19, 2014
    1. 79 FR 75872 - Federal Awarding Agency Regulatory Implementation of Office of Management and Budget's Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards
      GPO FDSys XML | Text
      GULF COAST ECOSYSTEM RESTORATION COUNCIL, DEPARTMENT OF TRANSPORTATION, EXECUTIVE OFFICE OF THE PRESIDENT, DEPARTMENT OF HEALTH AND HUMAN SERVICES, DEPARTMENT OF LABOR, INSTITUTE OF MUSEUM AND LIBRARY SERVICES, ENVIRONMENTAL PROTECTION AGENCY, NATIONAL ENDOWMENT FOR THE HUMANITIES, DEPARTMENT OF DEFENSE, NATIONAL AERONAUTICS AND SPACE ADMINISTRATION, DEPARTMENT OF THE INTERIOR, DEPARTMENT OF COMMERCE, DEPARTMENT OF AGRICULTURE, DEPARTMENT OF ENERGY, DEPARTMENT OF HOMELAND SECURITY, SOCIAL SECURITY ADMINISTRATION, DEPARTMENT OF STATE, DEPARTMENT OF VETERANS AFFAIRS, DEPARTMENT OF EDUCATION, DEPARTMENT OF JUSTICE, SMALL BUSINESS ADMINISTRATION, DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT, AGENCY FOR INTERNATIONAL DEVELOPMENT, NATIONAL SCIENCE FOUNDATION, CORPORATION FOR NATIONAL AND COMMUNITY SERVICE, NATIONAL ARCHIVES AND RECORDS ADMINISTRATION, DEPARTMENT OF TREASURY, NATIONAL ENDOWMENT FOR THE ARTS, Office of National Drug Control Policy, Office of Management and Budget, Commodity Credit Corporation, Rural Business-Cooperative Service, Federal Emergency Management Agency, National Institute of Food and Agriculture, Rural Utilities Service, Rural Housing Service, Office of the Chief Financial Officer, Farm Service Agency
      Interim final rule.
      Effective date: This interim final rule is effective on December 26, 2014. The incorporation by reference of certain publications listed in the rule is approved by the Director of the Federal Register as of December 26, 2014. Implementation dates: For grants authorized under the Robert T. Stafford Disaster Relief and Emergency Assistance Act, this rule is applicable for emergency or major disaster declarations issued on or after December 26, 2014. For non-Federal entities that are nonprofit organizations or institutions of higher education (IHEs), there is a one-year grace period for implementation of the procurement standards in 2 CFR 200.317 through 200.326. As will be detailed in the 2015 OMB Compliance Supplement, non-Federal entities choosing to delay implementation for the procurement standards will need to specify in their documented policies and procedures that they continue to comply with OMB circular A-110 for one additional fiscal year which begins after December 26, 2014. Comment date: To be assured of consideration, comments must be received by OMB electronically through www.regulations.gov no later than midnight Eastern Standard Time (E.S.T.) on February 17, 2015.
      2 CFR Parts 1, 25, 170, 180, and 200

This is a list of United States Code sections, Statutes at Large, Public Laws, and Presidential Documents, which provide rulemaking authority for this CFR Part.

This list is taken from the Parallel Table of Authorities and Rules provided by GPO [Government Printing Office].

It is not guaranteed to be accurate or up-to-date, though we do refresh the database weekly. More limitations on accuracy are described at the GPO site.


United States Code
U.S. Code: Title 29 - LABOR

Title 34 published on 2014-07-01

The following are ALL rules, proposed rules, and notices (chronologically) published in the Federal Register relating to 34 CFR Part 361 after this date.

  • 2015-04-23; vol. 80 # 78 - Thursday, April 23, 2015
    1. 80 FR 22661 - State Vocational Rehabilitation Services Program; State Supported Employment Services Program; Limitations on Use of Subminimum Wage
      GPO FDSys XML | Text
      DEPARTMENT OF EDUCATION, Office of Special Education and Rehabilitative Services
      Notice of public meetings.
      The meetings will take place on April 30, 2015, and May 20, 2015.
      34 CFR Parts 361, 363, and 397