Section 40. Eligibility requirements

A. Basic requirements. The designated state unit's determination of an applicant's eligibility for vocational rehabilitation services is 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 presumption, in accordance with subsection B of this section, that the applicant can benefit in terms of an employment outcome from the provision of vocational rehabilitation services; and (iv) 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 strengths, resources, priorities, concerns, abilities, capabilities, and informed choice.

B. Presumption of benefit. The designated state unit will presume that an applicant who meets the basic eligibility requirements in clauses (i) and (ii) of subsection A 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 from vocational rehabilitation services due to the severity of the applicant's disability.

C. Presumption of eligibility for Social Security beneficiaries. The designated state unit must assure that, if an applicant has appropriate evidence, such as an award letter, that establishes the applicant's eligibility for Social Security benefits under Title II or Title XVI of the Social Security Act, the designated state unit will presume that the applicant (i) meets the eligibility requirements in clauses (i) and (ii) of subsection A of this section and (ii) is an individual with a significant disability as defined in 22VAC30-20-10.

D. 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 this section.

E. Interpretation of entitlement. Nothing in this section is to be construed to create an entitlement to any vocational rehabilitation service.

F. Review and assessment of data for eligibility determination. Except as provided in 22VAC30-20-60, the designated state unit shall base its determination of each of the basic eligibility requirements in subsection 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, 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 vocational rehabilitation services, including assistive technology devices and services and worksite assessments, that are necessary to determine whether an individual is eligible.

G. Trial work experience for individuals with significant disabilities. 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, an exploration of the individual's abilities, capabilities, and capacity to perform in a realistic work situation is required in accordance with 34 CFR 361.42 to determine whether or not there is clear and convincing evidence to support such a determination.

Historical Notes

Derived from VR595-01-1 § 4, eff. July 1, 1987; amended, Volume 11, Issue 01, eff. November 2, 1994; Volume 17, Issue 07, eff. January 17, 2001; Volume 19, Issue 14, eff. April 24, 2003.

Statutory Authority

§ 51.5-14 of the Code of Virginia.