6.2 Eligibility Determinations

The determination shall not be postponed while the DVR counseling team awaits information about all impairments and/or impediments to employment. Rather the DVR Counselor completes the determination as soon as sufficient information is available to address the eligibility criteria and a preliminary disability priority level. If additional information is received, the case information is updated, including a change to the disability severity rating if warranted. The length of time between application and eligibility determination shall not exceed 60 calendar days unless one of the following applies:

1. Exceptional and unforeseen circumstances beyond the control of DVR preclude making an eligibility determination within the designated time, and the DVR counseling team and applicant agree to a specific extension of time. Documentation describing the reason for a time extension, its anticipated length and the applicant’s agreement to the time extension shall be in the service record and shall be completed prior to the expiration of the 60 calendar days. If the eligibility determination is not completed before the original time extension expires, a new time extension is required. Every new extension shall include the reason for the time extension and its anticipated length. The applicant’s agreement to every new time extension shall be in the service record and shall be completed prior to the expiration of the current extension. Written documentation of all eligibility extensions shall remain permanently in the service record. A current time extension shall be in place until the eligibility determination has been made.

2. There is doubt that the individual can benefit from vocational rehabilitation services in terms of an employment outcome and exploration of the individual’s abilities, capabilities, and capacity to perform in work situations is being carried out, through the use of trial work experience, to provide additional data necessary to determine eligibility. Trial work experiences include supported employment, Discovery, work-based learning, on-the-job training, and other experiences using realistic integrated work settings. Assessments of the individual’s progress toward demonstrating and/or developing abilities, capabilities, and capacity to perform in work situations are part of the trial work experience. As soon as sufficient information is gathered through the trial work experiences, the DVR Counselor shall proceed with the eligibility determination.

Any applicant for DVR services who has been determined to be eligible for benefits from Social Security Title II (Social Security Disability Insurance-SSDI) or Title XVI (Supplemental Security Income-SSI) based on their disability is presumed to be eligible for DVR services and to be an individual with a significant disability. 

Individuals may receive benefits from the Social Security Administration (SSA) for reasons other than a disability (e.g., Old-Age, Family, and Survivor benefits). Individuals are not presumptively eligible for DVR services based on these types of SSA benefits. Alternatively, individuals are presumed to be eligible for DVR services if they are eligible for SSI and/or SSDI benefits based on their disability, even if they are not currently receiving a payment.

An individual who applies for services from DVR should be asked to provide evidence of eligibility from SSA. Verification of SSI or SSDI eligibility shall be placed in the service record. Acceptable documentation includes the following:

1. A copy of an entitlement award or continuation letter from the SSA, dated no more than three months prior to application.

2. Any written documentation from SSA, such as a Benefits Planning Query (BPQY), received no more than three months prior to application, reflecting that the individual is currently eligible for SSI/SSDI benefits.

3. A copy of an individual’s Ticket to Work that has been verified as still in effect.

4. Or an electronic verification from the SSA or Disability Determination Services (DDS) stating that the individual is currently eligible for SSI/SSDI benefits.

If the applicant cannot provide one of the above forms of evidence, but asserts eligibility from SSA, the DVR counseling team shall contact SSA and verify the eligibility status of the applicant. This verification shall be made within a period of time that enables the DVR Counselor to determine the applicant’s eligibility for vocational rehabilitation services within 60 days of the individual submitting an application for services. A copy of the written evidence of the eligibility and pertinent information will be requested from the SSA by the DVR counseling team and shall be placed in the service record upon its receipt.

If the presumption of benefit in terms of an employment outcome is questioned, trial work experiences may be required. Presumptive eligibility does not create an entitlement to any vocational rehabilitation service.

For all other applicants, the DVR Counselor shall base the determination of eligibility on a review and assessment of existing data to the maximum extent possible. Sources of existing data include direct counseling team observations, medical and psychological records, educational records, information provided by the individual and the individual’s family or authorized representative, and information from other agencies, including SSA. The counselor shall apply professional judgment while reviewing the existing data, including older records when appropriate, to determine if the existing information accurately reflects the applicant’s current level of functioning and can be appropriately used for determination of eligibility. A permanent or stable physical or mental condition (e.g., amputation, intellectual disabilities, etc.) may be documented through previous medical or psychological reports, regardless of recency, while a progressive or unstable condition will require records that are more recent. 

Additional diagnostic services and assessments may be necessary if the existing data does not permit the identification of the current level of functioning or is unavailable, insufficient, or inappropriate to make an eligibility determination and to determine severity of disability. The provision of vocational rehabilitation services, including trial work experiences, assistive technology devices and services, personal assistance services, and other support services shall be provided if necessary to assess the individual’s capacity to perform in a work environment and to supplement existing information. 

Vocational rehabilitation services required to complete assessments shall be provided in the most integrated settings possible, consistent with the individual’s needs and informed choice. DVR will provide applicants with opportunities, as well as necessary supports and assistance, to exercise informed choice about decisions concerning the provision of assessment services.

Specialty examinations to identify the existence of a disabling condition and associated levels of functioning or to supplement existing information shall be conducted by professionals who are qualified to make a diagnosis within their scope of practice. DVR Counselors shall use independent judgment to ensure that the evaluative information is within the scope of the provider’s professional area of expertise or licensure. Medical consultation shall be obtained, when necessary, to clarify medical aspects, to assess the currency and adequacy of diagnostic materials, and to determine appropriate follow-up for medical recommendations. 

The service record shall contain evidence and written documentation of the DVR Counselor’s analysis of assessment data. This analysis may include observations of the individual’s level of functioning, abilities, and capabilities and shall always include how the impairment(s) hinders the individual in preparing for, entering into, engaging in, advancing in, or retaining employment consistent with the individual’s abilities and capabilities. The analysis shall be based on the individual’s unique life activities, circumstances, and employment experiences.

The counselor’s analysis of how the eligibility criteria have been met shall be thoroughly documented appropriately within DVR’s electronic case management system. All individuals shall receive written notice of their eligibility determination, using the agency-approved letter intended for this purpose. 

Any determination of ineligibility due to the severity of the individual’s disability shall be based on clear and convincing evidence demonstrated in trial work experiences in realistic work situations.

The clear and convincing standard constitutes the highest standard used in the U.S. 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” shall include, if appropriate, a functional assessment of skill development activities, with any necessary supports (including assistive technology) in real life settings.

Trial work experiences shall be provided prior to the 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. Trial work experiences shall provide an exploration of the individual's abilities, capabilities, and capacity to perform in realistic work settings to determine whether or not there is clear and convincing evidence that an employment outcome is precluded by the severity of the individual’s disability and an ineligibility decision is appropriate. 

Trial work experiences for the purpose of determining eligibility, or continued eligibility, shall be provided under a Trial Work Experience Plan in competitive integrated employment settings to the maximum extent possible, consistent with the informed choice and rehabilitation needs of the individual. The DVR Counselor and the individual shall jointly develop the plan for the trial work experiences. Trial work experiences include supported employment, Discovery, work-based learning, on-the-job training, and other experiences using realistic integrated work settings. Appropriate supports, including assistive technology devices and services and personal assistance services, to accommodate the rehabilitation needs of the individual shall be provided during the trial work experiences. Criteria shall be identified in the written plan that reflects the level of performance necessary to meet work requirements. Assessments of the individual’s progress toward demonstrating and/or developing abilities, capabilities, and capacity to perform in work situations shall be planned, provided, and documented in the service record at least every 30 days.

Trial work experiences shall be of sufficient variety and over a sufficient period of time 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.

The number, scope, and duration of trial work experiences that need to be provided to each individual are determined by the individual's unique situation and needs. In essence, it is determined by what is necessary to secure clear and convincing evidence that the individual can or cannot obtain competitive integrated employment. However, it is typically expected that the individual will be provided more than one trial work experience so that they have sufficient opportunities to demonstrate and/or develop their abilities, capabilities, and capacity to perform in competitive integrated work settings.