**UNITED STATES DEPARTMENT OF EDUCATION**

**OFFICE OF SPECIAL EDUCATION AND**

**REHABILITATIVE SERVICES**

**REHABILITATION SERVICES ADMINISTRATION**

**WASHINGTON, DC 20202**

> TECHNICAL ASSISTANCE CIRCULAR
>
> RSA-TAC-02-01
>
> DATE: February 11, 2002

**TO :** STATE VOCATIONAL REHABILITATION AGENCIES

(GENERAL)

> STATE VOCATIONAL REHABILITATION AGENCIES (BLIND)
>
> STATE REHABILITATION COUNCILS
>
> CLIENT ASSISTANCE PROGRAMS
>
> REGIONAL REHABILITATION CONTINUING EDUCATION PROGRAMS

AMERICAN INDIAN VOCATIONAL REHABILITATION SERVICES PROJECTS

> RSA SENIOR MANAGEMENT TEAM

**SUBJECT :** ASSESSMENTS OF INDIVIDUALS WITH SIGNIFICANT

DISABILITIES UNDER THE STATE VOCATIONAL

REHABILITATION SERVICES PROGRAM

**BACKGROUND:** This Technical Assistance Circular (TAC) clarifies the
process that must be followed in assessing whether individuals with
disabilities, particularly those with significant or the most
significant disabilities, are eligible under the State Vocational
Rehabilitation Services Program (VR program) which is authorized by
Title I of the Rehabilitation Act of 1973, as amended (Act). This TAC

follows the recent revision to the scope of available employment
outcomes under the VR program to include only outcomes in integrated
settings.

On January 22, 2001, amendments to the definition of the term
"employment outcome" in regulations for the VR program were published in
the Federal Register (66 FR 7249). These final regulations amended the
definition of "employment outcome" in 34 CFR 361.5(b)(16) to read:

Page 2

> "(16) Employment outcome means, with respect to an individual,
> entering or retaining full-time or, if appropriate, part-time
> competitive employment, as defined in Sec. 361.5(b)(11), in the
> integrated labor market, supported employment, or any other type of
> employment [in an integrated setting]{.underline}, including
> self-employment, telecommuting, or business ownership, that is
> consistent with an individual\'s strengths, resources, priorities,
>
> concerns, abilities, capabilities, interests, and informed choice.
> (Emphasis added).
>
> The term "integrated setting" \-- defined in 34 CFR §361.5(33)(ii)
>
> as a \"setting typically found in the community in which individuals
> with disabilities interact with non-disabled individuals to the same
> extent that non-disabled individuals in comparable positions interact
> with other persons \-- was unchanged by the regulatory
>
> amendments.
>
> The revised regulations included in the January 22, 2001 Notice became
> effective for all designated State VR agencies on October 1, 2001 (as
> explained in a subsequent Federal Register Notice, 66 FR 8870). The
> primary purpose of the change to the definition of "employment
> outcome," and the conforming changes to other regulatory provisions in
> 34 CFR 361, was to ensure that persons with disabilities participating
> in the VR program, particularly
>
> those with significant disabilities, are assisted by State Vocational
>
> Rehabilitation (VR) agencies in pursuing employment in integrated
>
> settings in the community. In that regard, the Rehabilitation Services
> Administration (RSA) determined that, consistent with the Act,
> narrowing the scope of available employment outcomes under the VR
> program to competitive employment, supported
>
> employment and other forms of integrated employment was
>
> necessary to both provide individuals with significant disabilities
>
> employment opportunities in settings comparable to non-disabled
>
> individuals and to ensure that individuals with significant
>
> disabilities are not routinely placed in extended employment (i.e.,
>
> sheltered work settings) based on the view that they are only
>
> capable of sheltered work as opposed to integrated employment in
>
> the community.
>
> This TAC is intended to address a key issue related to the
> promulgation of the revised regulations. Specifically, we wish to
> emphasize the process that State VR agencies must follow in assessing
> whether an individual with a disability, including an

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> individual with a significant disability (defined in section 7(21)(A)
> of the Act and 34 CFR 361.5(b)(31)) and an individual with a most
> significant disability (defined in section 7(21)(E) of the Act and 34
> CFR 361.5(b)(30)), is eligible under the VR program. This
>
> Circular is particularly necessary since all participants in the VR
> program are now required to pursue employment in an integrated setting
> in order to receive services under the VR program.
>
> We note that the January 22, 2001 Federal Register Notice also
>
> includes a number of other changes to the VR program regulations that
> are related to the revised definition of the term "employment
> outcome," and also includes extensive guidance material concerning the
> justification and consequences of the revised definition. In
> particular, the revised regulations require VR agencies to refer to
> local extended employment providers (e.g., community rehabilitation
> programs) individuals with disabilities who make an informed choice to
> pursue extended employment
>
> [after]{.underline} the State unit has informed the individual of the
> nature
>
> of the VR program, the individual's integrated employment
>
> options, and other important information specified in the
>
> regulations (see 34 CFR 361.37(b) of the revised regulations). The
>
> guidance in the Appendix also makes clear that extended
>
> employment remains a viable, interim option for purposes of
>
> preparing participants in the VR program for employment in
>
> integrated settings and a long-term employment option through
>
> sources other than the VR program for those individuals who
>
> prefer to work in extended employment facilities. Please refer to
>
> pages 7252 - 7253 of the January 22, 2001 Federal Register Notice
>
> for additional regulatory changes and to the Questions and
>
> Answers on Pages 7254 and the Analysis of Comments and Changes on
> Pages 7254 - 7258 of the notice for additional guidance material.
>
> Below, however, is a description of the process that State VR
>
> agencies must follow in assessing whether individuals with
>
> disabilities, including individuals with significant and the most
>
> significant disabilities, are eligible under the VR program. By
>
> clarifying the eligibility process, we intend to ensure that
> eligibility
>
> assessments for persons with significant and the most significant
>
> disabilities are properly conducted and are not prematurely
>
> discontinued or otherwise conducted in a manner that is
>
> inconsistent with VR program requirements.

Page 4

**DISCUSSION:** The eligibility criteria for the VR program are
specified in section 102(a) of the Act and 34 CFR 361.42 of the program
regulations. According to these requirements, an individual is eligible
to receive VR services if he or she is "an individual with a
disability," meaning that the individual has a physical or mental
impairment that results in an impediment to employment and can benefit
in terms of an employment outcome from VR services. The individual also
must require VR services in order to prepare

> for, secure, retain, or regain employment. (See Sections 7(20)(A)
>
> and 102(a)(1) of the Act and 34 CFR 361.5(b)(28) and 361.42(a)(1)).
>
> In applying the eligibility criteria to individuals with disabilities
>
> seeking VR services, particularly individuals with significant and
>
> the most significant disabilities, it is critical to note that both
> the Act and regulations specify that [any]{.underline} individual
> seeking VR
>
> services is "presumed" able to benefit in terms of an employment
> outcome from VR services unless the State VR agency can demonstrate by
> [clear and convincing evidence]{.underline} that the individual is
>
> incapable of benefiting in terms of an employment outcome under the VR
> program due to the severity of the individual\'s disability. (See
> section 102(a)(2)(A) of the Act and 34 CFR 361.42(a)(2)). For guidance
> purposes, "clear and convincing evidence" is described in a Note
> following 34 CFR 361.42 as, in part, the highest standard in our civil
> system of law whereby State agencies must have a high degree of
> certainty before concluding that an individual is incapable of
> benefiting from services in terms of an
>
> employment outcome. The term "clear," as stated in the Note,
>
> means unequivocal.
>
> Given that, as of October 1, 2001, employment outcomes under the VR
> program are limited to employment in integrated settings, the
> presumption that all individuals are able to benefit in terms of an
> "employment outcome" from VR services means that all individuals,
> including those with significant or the most significant disabilities,
> are presumed capable of working in an integrated setting provided that
> they are furnished necessary VR services.
>
> The expectation established by both the Act and regulations
>
> through, for example, the priority the Act affords individuals with
>
> significant disabilities under the order of selection requirements
>
> (see 101(a)(5) of the Act and 34 CFR 361.36) and through the
> presumption of benefit described above \-- is that individuals with

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> significant disabilities are capable of working in integrated settings
> in the community and that VR agencies should assist those
>
> individuals in that pursuit. Although some individuals seeking VR
> services may, in light of the severity of their disability, be
> considered by State VR agencies unable to perform work in an
> integrated setting, the agency [must]{.underline} establish clear and
> convincing evidence to that effect before determining that the
> individual is ineligible for VR services.
>
> The Act and regulations also specify steps that must be taken by
>
> State VR agencies before it can establish "clear and convincing
>
> evidence\'\' demonstrating that an individual is incapable of working
> in an integrated setting. Section 102(a)(1)(B) of the Act states that
> in order to demonstrate by clear and convincing evidence that an
> individual cannot benefit in terms of an employment outcome from VR
> services due to the severity of the individual's disability,
>
> the State VR agency shall:

"(B) \[E\]xplore the individual's abilities, capabilities, and capacity
to perform in realistic work situations, through the use of trial work
experiences, with appropriate supports. . . ."

Based on this authority, the regulations at 34 CFR§361.42(e) require the
agency to develop a [written]{.underline} plan for assessing the
individual's progress during trial work experiences and specify that:

-   The individual\'s abilities, capabilities, and capacity to perform
    in realistic work situations must be periodically assessed;

-   Trial work experiences must be conducted in realistic work settings;

-   Necessary and appropriate supports, including assistive technology
    devices and services and personal assistance services, must be
    provided to accommodate the rehabilitation needs of the individual
    during the trial work experiences; and

-   Trial work experiences [must be of sufficient variety and over a
    sufficient period of time]{.underline} to result in sufficient
    evidence to conclude either that: (1) the individual can benefit in
    terms of an employment outcome from VR services (i.e., is capable of
    working in an integrated setting) in which case the individual is

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> eligible for VR services, or (2) there is "clear and convincing
> evidence" to the contrary (i.e., clear and convincing evidence that
> the individual cannot work in an integrated setting due to the
> severity of the individual's disability) in which case the individual
> is ineligible for VR services (and must be referred to a local
> extended employment provider in accordance with 34 CFR 361.37 as
> revised by the regulations published in the January 22, 2001 Federal
> Register Notice; the procedures for making ineligibility
> determinations in 34 CFR 361.43 must also be followed). (See Sections
> 7(2)(D) and 102(a)(2)(B) of the Act and 34 CFR§361.42(e)).
>
> Notably, the regulations also describe the State VR agency's
> obligations in instances in which an individual cannot take
>
> advantage of trial work experiences or if options for trial work
> experiences have been exhausted without the agency being able to
> determine whether the individual is eligible for VR services.
>
> Please refer to the provisions of 34 CFR §361.42(f) for information
> concerning the [required]{.underline} use of extended evaluation under
> such circumstances.
>
> We've described this step-by-step approach to the eligibility process
> in order to highlight the steps that must be followed in determining
> whether an individual with disability, particularly an individual with
> a significant disability and an individual with a most significant
> disability, is capable of integrated employment and, correspondingly,
> eligible under the VR program. We caution State VR agencies that they
> must ensure that the full scope of the eligibility requirements
> discussed above are satisfied rather than determining an individual
> ineligible for VR services based on a belief or limited information
> indicating that the individual is too severely disabled to perform
> work in an integrated setting. If a State VR agency conducts only a
> limited assessment, meaning that it has insufficient information to
> demonstrate conclusively that
>
> the individual does not have the ability or capacity to work in an
> integrated setting, then an individualized assessment must continue
> until such time that clear and convincing evidence is established, or
> the individual is found to be capable of working in an integrated
> setting. Because an individualized assessment, including the trial
> work experiences component, must be carried out until either of these
> results is reached, agencies also must not impose arbitrary time
> limits on eligibility assessments. As we stated in the

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> Appendix to the January 22, 2001 Federal Register Notice, in the
> absence of clear and convincing evidence following a trial work
> assessment of the individual\'s abilities (or, as appropriate, an
> extended evaluation under 34 CFR 361.42(f)), VR agencies must consider
> each individual, including those with the most significant
>
> disabilities, capable of achieving integrated employment.

**CONCLUSION:** The Act and regulations prohibit determining any person
with a disability, including any individual with a significant or a most
significant disability, ineligible under the VR program based on an
assumption, belief, or limited information that the individual is
incapable of working in an integrated setting. When there is doubt
regarding an individual\'s ability to benefit from VR services in terms
of employment in an integrated job setting due to the severity of the
individual\'s disability, the Act and the regulations require the State
VR agency to conduct an individualized assessment that includes the
provision of trial work experiences in realistic work settings until
such time that the individual is found capable of working in an
integrated setting (when provided appropriate VR services) or there is
clear and convincing evidence that the individual cannot perform such
work.

**CITATIONS**

**IN LAW :** Sections 7(2), 7(20)(A), and 102(a) of the Rehabilitation
Act of

1973, as amended.

**CITATIONS**

**IN**

**REGULATIONS:** 34 CFR §§361.5(b)(16), 361.5(b)(28), 361.5(b)(33),
361.36,

361.37, and 361.42.

**EFFECTIVE**

**DATE :** Issue Date

Page 8

**EXPIRATION**

**DATE :** Until Retired

**INQUIRIES :** RSA Regional Commissioners

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

Joanne M. Wilson

Commissioner

cc: CSAVR

NORP

NCIL

NAPAS

NRFC