[Code of Federal Regulations]

[Title 34, Volume 2]

[Revised as of July 1, 2006]

From the U.S. Government Printing Office via GPO Access

[CITE: 34CFR361.36]



[Page 272-274]

 

                           TITLE 34--EDUCATION

 

 CHAPTER III--OFFICE OF SPECIAL EDUCATION AND REHABILITATIVE SERVICES, 

                         DEPARTMENT OF EDUCATION

 

PART 361_STATE VOCATIONAL REHABILITATION SERVICES PROGRAM--Table of 

Contents

 

       Subpart B_State Plan and Other Requirements for Vocational 

                         Rehabilitation Services

 

Sec.  361.36  Ability to serve all eligible individuals; order of 

selection for services.



    (a) General provisions. (1) The designated State unit either must be 

able to provide the full range of services listed in section 103(a) of 

the Act and Sec.  361.48, as appropriate, to all eligible individuals 

or, in the event that vocational rehabilitation services cannot be 

provided to all eligible individuals in the State who apply for the 

services, include in the State plan the order to be followed in 

selecting eligible individuals to be provided vocational rehabilitation 

services.

    (2) The ability of the designated State unit to provide the full 

range of vocational rehabilitation services to all eligible individuals 

must be supported by a determination that satisfies the requirements of 

paragraph (b) or (c) of this section and a determination that, on the 

basis of the designated State unit's projected fiscal and personnel 

resources and its assessment of the rehabilitation needs of individuals 

with significant disabilities within the State, it can--

    (i) Continue to provide services to all individuals currently 

receiving services;

    (ii) Provide assessment services to all individuals expected to 

apply for services in the next fiscal year;

    (iii) Provide services to all individuals who are expected to be 

determined eligible in the next fiscal year; and

    (iv) Meet all program requirements.

    (3) If the designated State unit is unable to provide the full range 

vocational rehabilitation services to all eligible individuals in the 

State who apply for the services, the State plan must--

    (i) Show the order to be followed in selecting eligible individuals 

to be provided vocational rehabilitation services;

    (ii) Provide a justification for the order of selection;

    (iii) Identify service and outcome goals and the time within which 

the goals may be achieved for individuals in each priority category 

within the order, as required under Sec.  361.29(c)(5); and

    (iv) Assure that--

    (A) In accordance with criteria established by the State for the 

order of selection, individuals with the most significant disabilities 

will be selected first for the provision of vocational rehabilitation 

services; and

    (B) Individuals who do not meet the order of selection criteria will 

have access to services provided through the information and referral 

system established under Sec.  361.37.

    (b) Basis for assurance that services can be provided to all 

eligible individuals. (1) For a designated State unit that determined, 

for the current fiscal year and the preceding fiscal year, that it is 

able to provide the full range of services, as appropriate, to all 

eligible individuals, the State unit, during the current fiscal and 

preceding fiscal year, must have in fact--

    (i) Provided assessment services to all applicants and the full 

range of services, as appropriate, to all eligible individuals;

    (ii) Made referral forms widely available throughout the State;

    (iii) Conducted outreach efforts to identify and serve individuals 

with disabilities who have been unserved or underserved by the 

vocational rehabilitation system; and

    (iv) Not delayed, through waiting lists or other means, 

determinations of eligibility, the development of individualized plans 

for employment for individuals determined eligible for vocational 

rehabilitation services, or the provision of services for eligible 

individuals for whom individualized plans for employment have been 

developed.

    (2) For a designated State unit that was unable to provide the full 

range of



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services to all eligible individuals during the current or preceding 

fiscal year or that has not met the requirements in paragraph (b)(1) of 

this section, the determination that the designated State unit is able 

to provide the full range of vocational rehabilitation services to all 

eligible individuals in the next fiscal year must be based on--

    (i) Circumstances that have changed that will allow the designated 

State unit to meet the requirements of paragraph (a)(2) of this section 

in the next fiscal year, including--

    (A) An estimate of the number of and projected costs of serving, in 

the next fiscal year, individuals with existing individualized plans for 

employment;

    (B) The projected number of individuals with disabilities who will 

apply for services and will be determined eligible in the next fiscal 

year and the projected costs of serving those individuals;

    (C) The projected costs of administering the program in the next 

fiscal year, including, but not limited to, costs of staff salaries and 

benefits, outreach activities, and required statewide studies; and

    (D) The projected revenues and projected number of qualified 

personnel for the program in the next fiscal year;

    (ii) Comparable data, as relevant, for the current or preceding 

fiscal year, or for both years, of the costs listed in paragraphs 

(b)(2)(i)(A) through (C) of this section and the resources identified in 

paragraph (b)(2)(i)(D) of this section and an explanation of any 

projected increases or decreases in these costs and resources; and

    (iii) A determination that the projected revenues and the projected 

number of qualified personnel for the program in the next fiscal year 

are adequate to cover the costs identified in paragraphs (b)(2)(i)(A) 

through (C) of this section to ensure the provision of the full range of 

services, as appropriate, to all eligible individuals.

    (c) Determining need for establishing and implementing an order of 

selection. (1) The designated State unit must determine, prior to the 

beginning of each fiscal year, whether to establish and implement an 

order of selection.

    (2) If the designated State unit determines that it does not need to 

establish an order of selection, it must reevaluate this determination 

whenever changed circumstances during the course of a fiscal year, such 

as a decrease in its fiscal or personnel resources or an increase in its 

program costs, indicate that it may no longer be able to provide the 

full range of services, as appropriate, to all eligible individuals, as 

described in paragraph (a)(2) of this section.

    (3) If a DSU establishes an order of selection, but determines that 

it does not need to implement that order at the beginning of the fiscal 

year, it must continue to meet the requirements of paragraph (a)(2) of 

this section, or it must implement the order of selection by closing one 

or more priority categories.

    (d) Establishing an order of selection--(1) Basis for order of 

selection. An order of selection must be based on a refinement of the 

three criteria in the definition of ``individual with a significant 

disability'' in section 7(21)(A) of the Act and Sec.  361.5(b)(31).

    (2) Factors that cannot be used in determining order of selection of 

eligible individuals. An order of selection may not be based on any 

other factors, including--

    (i) Any duration of residency requirement, provided the individual 

is present in the State;

    (ii) Type of disability;

    (iii) Age, gender, race, color, or national origin;

    (iv) Source of referral;

    (v) Type of expected employment outcome;

    (vi) The need for specific services or anticipated cost of services 

required by an individual; or

    (vii) The income level of an individual or an individual's family.

    (e) Administrative requirements. In administering the order of 

selection, the designated State unit must--

    (1) Implement the order of selection on a statewide basis;

    (2) Notify all eligible individuals of the priority categories in a 

State's order of selection, their assignment to a particular category, 

and their right to appeal their category assignment;

    (3) Continue to provide all needed services to any eligible 

individual who has begun to receive services under an



[[Page 274]]



individualized plan for employment prior to the effective date of the 

order of selection, irrespective of the severity of the individual's 

disability; and

    (4) Ensure that its funding arrangements for providing services 

under the State plan, including third-party arrangements and awards 

under the establishment authority, are consistent with the order of 

selection. If any funding arrangements are inconsistent with the order 

of selection, the designated State unit must renegotiate these funding 

arrangements so that they are consistent with the order of selection.

    (f) State Rehabilitation Council. The designated State unit must 

consult with the State Rehabilitation Council, if the State unit has a 

Council, regarding the--

    (1) Need to establish an order of selection, including any 

reevaluation of the need under paragraph (c)(2) of this section;

    (2) Priority categories of the particular order of selection;

    (3) Criteria for determining individuals with the most significant 

disabilities; and

    (4) Administration of the order of selection.



(Approved by the Office of Management and Budget under control number 

1820-0500)



(Authority: Sections 12(d); 101(a)(5); 101(a)(12); 101(a)(15)(A), (B) 

and (C); 101(a)(21)(A)(ii); and 504(a) of the Act; 29 U.S.C. 709(d), 

721(a)(5), 721(a)(12), 721(a)(15)(A), (B) and (C); 721(a)(21)(A)(ii), 

and 794(a))



[66 FR 4382, Jan. 17, 2001, as amended at 66 FR 7253, Jan. 22, 2001]