INTRODUCTION & ELIGIBILITY

Introduction

The Individuals with Disabilities Education Act (IDEA) requires planning for the transition from school to adult life for students with disabilities to begin at age 16. Many states begin earlier at around age 14. In addition to pre-vocational education and work experiences provided by the school, students should prepare for receiving vocational rehabilitation services from their state’s Vocational Rehabilitation (VR) agency if they expect to be eligible for these services. VR agencies, which are found in every state, offer vocational rehabilitation services to eligible persons with disabilities to help them to prepare for, retain, regain, or advance in employment. Some states have separate VR agencies serving individuals who are deaf or blind. VR agencies are now also now required to provide a specific set of services for secondary students who may not be presumed to be—or ever be deemed— eligible for general VR services called Pre-employment Transition Services (Pre-ETS). For more on Pre-ETS services, see Part 2 of this guide series.

About VR Agencies

VR agencies were created by the Rehabilitation Act of 1973 (Rehab Act). Under Title I of the Act, states receive money to provide VR services to persons with disabilities. VR agencies use this money to fund a wide range of goods and services that are connected to a person’s vocational goal. Eligible individuals have a right to these services under federal and state laws.

The Rehab Act is based on the principal that “people with disabilities are capable of achieving high quality, competitive and integrated employment when provided the necessary services and supports.” State-run VR systems were created to provide the services persons with disabilities need in order to participate in job-driven training and to pursue high-quality employment outcomes.

Since 1986, the Rehabilitation Act has required VR agencies to “maximize the employment” outcome for those receiving VR services. This change expanded VR services to increase the potential of individuals with disabilities to achieve competitive integrated employment.

In 1998, President Clinton signed the Workforce Investment Act (WIA), and in 2014, President Obama signed the Workforce Innovation and Opportunity Act (WIOA), both of which significantly strengthened the Rehabilitation Act’s original requirements.

Today, the law continues to reinforce and ensure its original intent: “Individuals with disabilities, with appropriate supports and services, are able to achieve the same kinds of competitive integrated employment as non-disabled individuals.” It also now places a greater emphasis on serving people with disabilities, including people with the most significant disabilities, and VR agencies’ responsibility to help them achieve competitive employment in an integrated setting.

ADVOCACY TIP  |  Encourage parents and students to learn more about VR and VR services. If they think the student may be eligible for VR services, they should contact the state VR Agency as soon as possible to apply.

Eligibility for Vocational Rehabilitation Services

To be eligible for Vocational Rehabilitation services, the individual must:

1. Have a physical, mental, emotional, or learning disability that is a real barrier to the individual getting and keeping a job,
2. Need Vocational Rehabilitation services to prepare the individual to get, keep, or regain employment, and
3. Be able to benefit from the services that will help the individual to get and keep the job or to benefit from independent living.

If the individual receives Supplemental Security Income (SSI) and/or Social Security Disability Insurance (SSDI), they are automatically considered eligible. But it is important to note that the individual does not need to be eligible for or receiving SSI or SSDI in order to be eligible for VR services.

Students who are in special education programs, receive accommodations in school, or have a severe health conditions may be eligible.

Applicants for VR services must have a “substantial impediment” — a mental, physical, or learning disability — that interferes with the ability to work and hinders their access to an ultimate employment goal. The regulations indicate that “impediment” should be interpreted broadly.

A substantial impediment must also cause a person to need VR services in order to “prepare for, secure, retain, advance in, or regain employment,” AND the applicant must be able to benefit from VR services.

ADVOCACY TIP  |  Students receiving special education services in secondary school can receive VR services while still in school beginning at age 14 but not later than age 16. A member of the IEP Team or any school staff member can refer the student for VR services. Students—without or without help from family members—can also self-refer. Getting started early can help ensure a smooth transition to the VR services they’ll need after they graduate.

Before a VR agency can determine that an individual cannot benefit from VR services, it must explore the individual’s work potential through a variety of assessments and trial work experiences. Examples might include supported employment or on-the-job training in realistic work situations. The trial work experiences must:

• Be in competitive integrated employment settings to the maximum extent appropriate,
• Be of sufficient variety and over a sufficient length of time to determine whether the individual can benefit from services, and
• Provide supports (such as assistive technology and personal assistance services).

In order to decide that a person cannot benefit from VR services, the VR agency must show by “clear and convincing” evidence that they cannot benefit through the provision of supports. That evidence might be developed from assessments by healthcare or employment specialists, or from service providers who have concluded that they would not be able to meet the individual’s needs due to the severity of the individual’s disability. “Clear and convincing evidence” must include a functional assessment of skills with any necessary supports (including assistive technology), in real life settings.

An additional set of school-to-work transition services called “Pre-Employment Transition Services” (Pre-ETS) are provided by VR agencies to students with disabilities while they are still in secondary school. Pre-ETS do not require a VR eligibility determination. For more on Pre-ETS, see Part 2 of this guide series.

ADVOCACY TIP  |  VR Transition Counselors can collaborate with the school team and provide VR services before graduation. If the VR agency is invited to the school team’s table, they are required to help the IEP Team develop the IEP.

VR Comparable Service Rules

A VR agency can deny VR services in whole or in part if the services needed are provided by or funded by any other program within the state. Some VR services must be provided regardless of whether that is the case.

Exceptions include:

• assessments for determining eligibility or services needed,
• counseling and guidance related to employment decisions,
• referral services,
• job search/job placement/job retention services,
• assistive technology, and
• post-employment services.

A VR agency CANNOT deny VR services if the decision would interrupt or delay the person’s progress toward:

• achieving the employment outcome in the Individualized Plan for Employment (IPE),
• an immediate job placement, or
• the provision of VR services to a person who is determined to be at extreme medical risk.

If comparable services exist and are available at the time needed, the VR agency must use those comparable services or benefits to meet, in whole or part, the costs of the VR services. If comparable services exist and are NOT available, the VR agency must provide VR services until the comparable services become available.

Financial Participation

State VR agencies may consider the income of eligible individuals to determine if they will be required to share the cost of general vocational rehabilitation services. The VR agency may ask that the individual fill out a Financial Participation Assessment form.

Individuals who receive SSI or SSDI are exempt from Financial Participation.

If a state VR agency does require Financial Participation, it must maintain written policies and apply them uniformly to individuals in similar circumstances. The VR agency may apply different levels of need for different geographic regions in the State, but it must apply them uniformly to all individuals within each geographic region. State’s Financial Participation policies must also ensure that the level of an individual’s participation is reasonable, accounts for any personal circumstances including disability-related expenses, and is not so high as to effectively deny the individual a necessary service. Additionally, some VR services are exempt from state Financial Participation requirements, and the individual will not be required to pay for those services.

Order of Selection

Not all individuals who are eligible will necessarily receive VR services. VR agencies are required to serve individuals with the most significant disabilities first when there are not enough resources to serve everyone who is eligible. This means that “individuals with the most significant disabilities” are given priority over those with less significant disabilities. This process is called an “Order of Selection.”

The federal regulations do not specifically define “individual with a most significant disability.” State VR agencies are given discretion in how they define an individual with a most significant disability.

Typically, the categories they define will consider:

1. the number of functional capacities affected,
2. the need for multiple VR services for an extended period of time, and
3. the existence of one or more physical or mental disabilities.

No other factors — including type of disability, referral source, or income — can be used to determine significance of disability or assignment to a priority category.

If a VR agency determines that it cannot provide the “full range” of VR services to all eligible individuals, it must include in its State plan “the order to be followed in selecting eligible individuals to be provided [VR] services.”

A state’s Order of Selection must “show the order to be followed in selecting eligible individuals for” VR services and provide justification for the plan it selects. Individuals receiving disability benefits from the Social Security Administration (SSA) are considered to be individuals with significant disabilities, but under Order of Selection, they must be further assessed to determine if they meet the State agency’s criteria for “individuals with the most significant disabilities.”

When a state implements an Order of Selection, it must:

1. Do so on a statewide basis;
2. Notify all eligible individuals of the priority categories the State has established in its Order of Selection, their assignment into a particular category, and the right to appeal their category assignment; and
3. Continue to provide all necessary services to all individuals who started receiving services prior to the effective date, regardless of the severity of the individual’s disability.

Individuals may still apply for VR services under Order of Selection. The VR agency is still required to provide assessment services to all individuals who apply to determine eligibility for VR services and, for those found eligible, their priority category under the State’s Order of Selection.

The VR agency must continue to provide information and referral services to any individuals on waiting lists during the Order of Selection year, but it will not develop IPEs for them.

ADVOCACY TIP  |  If the state is under an Order of Selection, individuals should still apply for services. They can still be found eligible and receive assessments and other services while on a waiting list.

Vocational Rehabilitation Evaluations and Assessments

Vocational assessment is the process of determining an individual’s interests, abilities, aptitudes, and skills to identify vocational strengths, needs, and career potential. Vocational assessment may use a variety of standardized techniques (tests) or non-standardized approaches (interviews, observing people).

For students transitioning from secondary school, VR agencies may also review evaluations and other documents from the student’s school years.

Parents and school districts should consider updating assessments in anticipation of the student’s referral to the VR agency. However, the VR agency is ultimately responsible for obtaining any additional assessments that it needs to determine eligibility for VR services.

VR agencies sometimes perform “situational assessments,” to assess work behaviors, work tolerance, ability to follow instructions, work with others, and more. These involve placing the person in an actual work situation to assess their performance. Such assessments can also be used to assess job-specific work skills and abilities.

If a student of transition age has had work experience during their school years, documentation from the student’s performance in these settings may also be considered.

ADVOCACY TIP  |  Encourage parents and student to gather and review any evaluations or assessments they may have, including those received during school years. If the student is still in secondary school, they should ask the school team to develop new evaluations to prepare for receiving VR services.