6 - The Act and Regulations

Criterion for Eligibility. An individual is eligible for assistance under this title if the individual—

● Has undergone an assessment for determining eligibility and vocational rehabilitation needs and as a result has been determined to be an individual with a disability under section 705(20)(A) [Definitions, Individual with a Disability]; and

● Requires vocational rehabilitation services to prepare for, secure, retain, advance in, or regain employment that is consistent with the individual’s strengths, resources, priorities, concerns, abilities, capabilities, interests, and informed choice.

For purposes of an assessment for determining eligibility and vocational rehabilitation needs...an individual shall be presumed to have a goal of an employment outcome.

Presumption of Benefit. ...An individual shall be presumed to be an individual that can benefit in terms of an employment outcome from vocational rehabilitation services...

● Prior to determining...that an applicant...is unable to benefit due to the severity of the individual’s disability or that the individual is ineligible for vocational rehabilitation services, 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...

Presumption of Eligibility. ...An individual who has a disability or is blind as determined pursuant to title II or title XVI of the Social Security Act...shall be—

○ Considered to be an individual with a significant disability...

○ Presumed to be eligible for vocational rehabilitation services...(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 state unit involved can demonstrate by clear and convincing evidence that such an individual is incapable of benefiting in terms of an employment outcome due to the severity of the disability...

(See 29 USC § 722 - Eligibility and individualized plan for employment.)

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. Eligibility Requirements –

● 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:

○ A determination by qualified personnel that the applicant has a physical or mental impairment

○ 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

○ 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, advance in, or regain employment consistent with the applicant’s unique strengths, resources, priorities, concerns, abilities, capabilities, interest and informed choice. For purposes of an assessment for determining eligibility and vocational rehabilitation needs under this part, an individual is presumed to have a goal of an employment outcome.

● Presumption of benefit. The designated State unit must presume that an applicant who meets the eligibility requirements...can benefit in terms of an employment outcome.

● Presumption of eligibility for Social Security recipients and beneficiaries.

○ Any applicant who has been determined eligible for Social Security benefits under Title II or Title XVI of the Social Security Act is—

■ Presumed eligible for vocational rehabilitation services...

■ Considered an individual with a significant disability...

○ If an applicant for vocational rehabilitation services asserts that [they are] eligible for Social Security benefits under title II or title XVI of the Social Security Act...but is unable to provide appropriate evidence...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...

● 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...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. 

○ 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.

○ 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...

(See 34 CFR 361.42 - Assessment for determining eligibility and priority for services.)