Eligibility Codes

Codes

Cal. Code of Regs, title 9 Sec. 7062
§ 7062. 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 implemented pursuant to Section 7053 of these regulations, the Department must conduct an assessment in the most integrated setting possible, consistent with the individual's needs and informed choice, and in accordance with the following provisions.

  1. The Department's determination of an applicant's eligibility for vocational rehabilitation services must be based only on the following requirements:
    1. A determination by qualified personnel, who need not be Department employees, that the applicant has a physical or mental impairment;
    2. A determination by qualified personnel, who need not be Department employees, 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 Rehabilitation Counselor employed by the Department 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; and
    4. A presumption, in accordance with (c) of this section, that the applicant can benefit from the provision of vocational rehabilitation services in terms of an employment outcome in an integrated setting.
  2. Personnel not employed by the Department who make the determination(s) specified in (a)(1) or (2) must:
    1. Possess the knowledge and expertise needed to make the determination(s); and
    2. Base the determination(s) on current information that is relevant and sufficient to support such determination(s).
  3. The Department must presume that an applicant who meets the eligibility requirements specified in (a)(1) and (2) of this section can benefit in terms of an employment outcome in an integrated setting, unless it demonstrates, based on clear and convincing evidence, that the applicant is incapable of benefiting from vocational rehabilitation services in terms of an employment outcome in an integrated setting due to the severity of the applicant's disability.
  4. When determining the eligibility of Social Security recipients and beneficiaries the following conditions shall apply:
    1. Any applicant who has been determined by the Social Security Administration (SSA) to be eligible for Social Security benefits under Title II (Social Security Disability Insurance (SSDI)) or Title XVI (Supplemental Security Income (SSI)) of the Social Security Act (42 USC Section 401 and 1381) because the individual is blind or disabled is---
      1. Presumed eligible for vocational rehabilitation services under (a) and (c) of this section; and
      2. Considered an individual with a significant disability as defined in Section 7017.5 of these regulations.
    2. 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 (d)(1)(A) of this section), but is unable to provide appropriate evidence, such as an award letter to support that assertion, the Department must verify the applicant’s eligibility under Title II or Title XVI of the Social Security Act by contacting the Social Security Administration. The Department shall obtain verification within a reasonable period of time that enables the Department to determine the applicant's eligibility for vocational rehabilitation services within 60 days of the individual submitting an application for services in accordance with Section 7041(b) of these regulations.
  5. 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.
  6. Nothing in this section, including the provisions of (d)(1), shall be construed to create an entitlement to any vocational rehabilitation service.
  7. Except as provided in (h) and (i) of this section, the Department--
    1. Must base its determination of each of the basic eligibility requirements in (a) of this section on---
      1. A review and assessment of existing data, including:
        1. Counselor observations including, but not limited to, observation of an obvious impairment, as in the case of loss of a limb.
        2. Medical records.
        3. Education records.
        4. Information provided by the individual or the individual's family, particularly information used by education officials.
        5. Determinations made by officials of other agencies.
      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 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.
    2. Must base its presumption under (d)(1) 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 (a) of this section on determinations made by the Social Security Administration.
  8. Prior to any determination that an individual with a disability is incapable of benefiting from vocational rehabilitation services in terms of an employment outcome in an integrated setting due to the severity of the individual's disability, the Department must conduct trial work experience as defined in Section 7029.1 of these regulations to determine whether or not there is clear and convincing evidence to support such a determination.
  9. 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 Department is able to determine whether the individual can benefit from the provision of vocational rehabilitation services in terms of an employment outcome in an integrated setting, or whether there is clear and convincing evidence that the individual is incapable of benefiting from vocational rehabilitation services in terms of an employment outcome in an integrated setting due to the severity of the individual's disability, the Department must conduct an extended evaluation as defined in Section 7014 of these regulations.
  10. When the Department is operating under an Order of Selection implemented pursuant to Section 7053 of these regulations, the Department must base its priority category assignments on---
    1. A review of the data that was developed under (g) and (h) of this section to make the eligibility determination; and
    2. An assessment of additional data, including data developed under (i) of this section, to the extent necessary.
  11. The Rehabilitation Counselor shall document the basis on which the individual's eligibility has been established in a notice of eligibility. This notice, signed and dated by the Rehabilitation Counselor, shall be provided to the individual and a copy placed in the individual's record of services.

29 USC 722(a)

  1. Eligibility
    1. Criterion for eligibility
      An individual is eligible for assistance under this subchapter if the individual--
      1. is an individual with a disability under section 705(20)(A) of this title; and
      2. requires vocational rehabilitation services to prepare for, secure, retain, or regain employment.
    2. Presumption of benefit
      1. Demonstration
        For purposes of this section, an individual shall be presumed to be an individual that can benefit in terms of an employment outcome from vocational rehabilitation services under section 705(20)(A) of this title, unless the designated State unit involved can demonstrate by clear and convincing evidence that such individual is incapable of benefiting in terms of an employment outcome from vocational rehabilitation services due to the severity of the disability of the individual.
      2. Methods
        In making the demonstration required under subparagraph (A), the designated State unit shall explore the individual's abilities, capabilities, and capacity to perform in work situations, through the use of trial work experiences, as described in section 705(2)(D) of this title, with appropriate supports provided through the designated State unit, except under limited circumstances when an individual cannot take advantage of such experiences. Such experiences shall be of sufficient variety and over a sufficient period of time to determine the eligibility of the individual or to determine the existence of clear and convincing evidence that the individual is incapable of benefiting in terms of an employment outcome from vocational rehabilitation services due to the severity of the disability of the individual.
    3. Presumption of eligibility
      1. In general
        For purposes of this section, an individual who has a disability or is blind as determined pursuant to title II or title XVI of the Social Security Act (42 U.S.C. 401 et seq. and 1381 et seq.) shall be--
        1. considered to be an individual with a significant disability under section 705(21)(A) of this title; and
        2. presumed to be eligible for vocational rehabilitation services under this subchapter (provided that the individual intends to achieve an employment outcome consistent with the unique strengths, resources, priorities, concerns, abilities, capabilities, interests, and informed choice of the individual) unless the designated State unit involved can demonstrate by clear and convincing evidence that such individual is incapable of benefiting in terms of an employment outcome from vocational rehabilitation services due to the severity of the disability of the individual in accordance with paragraph (2).
      2. Construction
        Nothing in this paragraph shall be construed to create an entitlement to any vocational rehabilitation service.
    4. Use of existing information
      1. In general
        To the maximum extent appropriate and consistent with the requirements of this part, for purposes of determining the eligibility of an individual for vocational rehabilitation services under this subchapter and developing the individualized plan for employment described in subsection (b) of this section for the individual, the designated State unit shall use information that is existing and current (as of the date of the determination of eligibility or of the development of the individualized plan for employment), including information available from other programs and providers, particularly information used by education officials and the Social Security Administration, information provided by the individual and the family of the individual, and information obtained under the assessment for determining eligibility and vocational rehabilitation needs.
      2. Determinations by officials of other agencies
        Determinations made by officials of other agencies, particularly education officials described in section 721(a)(11)(D) of this title, regarding whether an individual satisfies one or more factors relating to whether an individual is an individual with a disability under section 705(20)(A) of this title or an individual with a significant disability under section 705(21)(A) of this title shall be used, to the extent appropriate and consistent with the requirements of this part, in assisting the designated State unit in making such determinations.
      3. Basis
        The determination of eligibility for vocational rehabilitation services shall be based on--
        1. the review of existing data described in section 705(2)(A)(i) of this title; and
        2. to the extent that such data is unavailable or insufficient for determining eligibility, the provision of assessment activities described in section 705(2)(A)(ii) of this title.
    5. Determination of ineligibility
      If an individual who applies for services under this subchapter is determined, based on the review of existing data and, to the extent necessary, the assessment activities described in section 705(2)(A)(ii) of this title, not to be eligible for the services, or if an eligible individual receiving services under an individualized plan for employment is determined to be no longer eligible for the services--
      1. the ineligibility determination involved shall be made only after providing an opportunity for full consultation with the individual or, as appropriate, the individual's representative;
      2. the individual or, as appropriate, the individual's representative, shall be informed in writing (supplemented as necessary by other appropriate modes of communication consistent with the informed choice of the individual) of the ineligibility determination, including--
        1. the reasons for the determination; and
        2. a description of the means by which the individual may express, and seek a remedy for, any dissatisfaction with the determination, including the procedures for review by an impartial hearing officer under subsection (c) of this section;
      3. the individual shall be provided with a description of services available from the client assistance program under section 732 of this title and information on how to contact that program; and
      4. any ineligibility determination that is based on a finding that the individual is incapable of benefiting in terms of an employment outcome shall be reviewed--
        1. within 12 months; and
        2. thereafter, if such a review is requested by the individual or, if appropriate, by the individual's representative.
    6. Timeframe for making an eligibility determination
      The designated State unit shall determine whether an individual is eligible for vocational rehabilitation services under this subchapter within a reasonable period of time, not to exceed 60 days, after the individual has submitted an application for the services unless--
      1. exceptional and unforeseen circumstances beyond the control of the designated State unit preclude making an eligibility determination within 60 days and the designated State unit and the individual agree to a specific extension of time; or
      2. the designated State unit is exploring an individual's abilities, capabilities, and capacity to perform in work situations under paragraph (2)(B).

34 CFR Sec. 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:

  1. 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:
      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 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.
      4. 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.
      1. Any applicant who has been determined eligible for Social Security benefits under Title II or Title XVI of the Social Security Act is--
        1. Presumed eligible for vocational rehabilitation services under paragraphs (a)(1) and (2) of this section; and
        2. Considered an individual with a significant disability as defined in Sec. 361.5(b)(31).
      2. 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 Sec. 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.
      1. 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.
      2. 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.
  2. 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 Sec. 361.41(b)(2).
    2. If a State chooses to make interim determinations of eligibility, the designated State unit must--
      1. Establish criteria and conditions for making those determinations;
      2. Develop and implement procedures for making the determinations; and
      3. 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 Sec. 361.41(b)(2).
  3. 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--
      1. No applicant or group of applicants is excluded or found ineligible solely on the basis of the type of disability; and
      2. The eligibility requirements are applied without regard to the--
        1. Age, gender, race, color, or national origin of the applicant;
        2. Type of expected employment outcome;
        3. Source of referral for vocational rehabilitation services; and
        4. Particular service needs or anticipated cost of services required by an applicant or the income level of an applicant or applicant's family.
  4. 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--
      1. 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
      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 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.
  5. 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.
      1. 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.
      2. Trial work experiences include supported employment, on-the-job training, and other experiences using realistic work settings.
      3. Trial work experiences must be of sufficient variety and over a sufficient period of time for the designated State unit to determine that--
        1. 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
        2. 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.
      4. 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.
  6. 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.
  7. 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 Sec. 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.