FAQs for the State VR agency’s Election to Serve Eligible Individuals (regardless of an OOS)
Requiring Specific Services or Equipment to Maintain Employment (i.e., job jeopardy)
- If an agency is in an OOS and all categories are closed, can they still choose to provide job retention services per 361.36(a)(3)(v)?
- If job retention services include any VR service – does this mean rehabilitation technology and supported employment needed to retain a job are included? For example, if someone needs a hearing aid, modified vehicle, modified home, or job coaching to retain employment would these be exempt from comparable benefits? Are they also exempt from the financial needs test?
- Are the services an individual may need for these cases subject to the agency’s financial needs test?
- As it pertains to a State VR agency’s election to serve eligible individuals (regardless of an OOS) requiring specific services or equipment to maintain employment (i.e., job jeopardy), are job retention services exempt from the need to rule out comparable benefits?
- Can states include a time limit for service provision to ensure only services that can be provided in the “very near future” are provided due to the nature of these cases?
- If an agency is in an OOS and all categories are closed, can they still choose to provide job retention services per 361.36(a)(3)(v)?
Response: Yes. If the State VR agency indicates in their State Plan that they will serve people who are in danger of losing their current job, then this would be applied uniformly across all categories and regardless of whether or not the VR agency has any or all of their categories closed.
Applicable regulation:
(§ 361.36(a)(v) ...State whether the designated State unit will elect to serve, in its discretion, eligible individuals (whether or not the individuals are receiving vocational rehabilitation services under the order of selection) who require specific services or equipment to maintain employment, notwithstanding the assurance provided pursuant to paragraph (3)(iv)(A) of this section.
- If job retention services include any VR service – does this mean rehabilitation technology and supported employment needed to retain a job are included? For example, if someone needs a hearing aid, modified vehicle, modified home, or job coaching to retain employment would these be exempt from comparable benefits? Are they also exempt from the financial needs test?
Response: Discussion in the preamble of the regulations states job retention services “may” include any VR service. Just like other VR services, job retention services can be very individualized based upon the specific needs of the individual and their specific employment situation. The VR agency’s policies and procedures should outline what constitutes a service necessary to enable an individual to maintain their employment, when the individual would need to apply for VR services, be determined eligible, and be subject to the OOS and wait list. These parameters should be developed in accordance with the agency’s current financial needs test if applicable, and other guidance documents you have developed for the provision of specific services such as van and home modifications, hearing aids, etc. Procedures should include how the agency handles exceptional circumstances as well.
- Are the services an individual may need for these cases subject to the agency’s financial needs test?
Response: Since job related services may encompass any VR service, then those services not exempt from a financial needs test as outlined in§ 361.54(b)(3) would be subject as it would in any other circumstance.
Applicable regulations:
Page 55774 § 361.54 Participation of individuals in cost of services based on financial need.
§ 361.54(b)(3) The designated State unit may not apply a financial needs test, or require the financial participation of the individual—
(i) As a condition for furnishing the following vocational rehabilitation services:
(A) Assessment for determining eligibility and priority for services under § 361.48(b)(1), except those non assessment services that are provided to an individual with a significant disability during either an exploration of the individual’s abilities, capabilities, and capacity to perform in work situations through the use of trial work experiences under § 361.42(e).
(B) Assessment for determining vocational rehabilitation needs under § 361.48(b)(2).
(C) Vocational rehabilitation counseling and guidance under § 361.48(b)(3).
(D) Referral and other services under § 361.48(b)(4).
(E) Job-related services under § 361.48(b)(12).
(F) Personal assistance services under § 361.48(b)(14).(G) Any auxiliary aid or service (e.g., interpreter services under § 361.48(b)(10), reader services under § 361.48(b)(11)) that an individual with a disability requires under section 504 of the Act (29 U.S.C. 794) or the Americans with Disabilities Act (42 U.S.C. 12101, et seq.), or regulations implementing those laws, in order for the individual to participate in the vocational rehabilitation program as authorized under this part; or
(ii) As a condition for furnishing any vocational rehabilitation service if the individual in need of the service has been determined eligible for Social Security benefits under titles II or XVI of the Social Security Act. - As it pertains to a State VR agency’s election to serve eligible individuals (regardless of an OOS) requiring specific services or equipment to maintain employment (i.e., job jeopardy), are job retention services exempt from the need to rule out comparable benefits?
Response: In accordance with the regulations (as noted on page 55753), job-related services, including job search and placement assistance, job retention services, follow-up services, and follow-along services, are exempt from a determination of the availability of comparable services and benefits. The preamble discussion on page 55678 further states that job-retention services and follow-along services are both types of job-related services; and that job-retention services may include any vocational rehabilitation service (i.e., vocational rehabilitation counseling and guidance, maintenance, or tools) necessary to help an individual maintain employment. However, the preamble discussion on page 55679 under “Comparable Services and Benefits” clarifies that …”section 101(a)(8)(A)(i) of the Act, as amended by WIOA, specifically added accommodations or auxiliary aids and services to those services that require a determination of available comparable services and benefits before the DSU may provide them. Moreover, section 101(a)(8)(A)(i) specifically exempts certain services from this search, but accommodations or auxiliary aids and services are not among those that are exempt.
Therefore, even though job retention services (which may include any vocational rehabilitation services) are exempt from the search for comparable services and benefits; if the job retention service that the individual needs includes a service such as accommodations or auxiliary aids and services that require a determination of available comparable services and benefits, the VR agency would still need to do a search for comparable services and benefits.
Applicable information from the preamble and final regulations:
Page 55753:
§ 361.53 Comparable services and benefits.(a) Determination of availability. The vocational rehabilitation services portion of the Unified or Combined State Plan must assure that prior to providing an accommodation or auxiliary aid or service or any vocational rehabilitation services, except those services listed in paragraph (b) of this section, to an eligible individual or to members of the individual’s family, the State unit must determine whether comparable services and benefits, as defined in § 361.5(c)(8), exist under any other program and whether those services and benefits are available to the individual unless such a determination would interrupt or delay—
(1) The progress of the individual toward achieving the employment outcome identified in the individualized plan for employment;
(2) An immediate job placement; or
(3) The provision of vocational rehabilitation services to any individual who is determined to be at extreme medical risk, based on medical evidence provided by an appropriate qualified medical professional.
(b) Exempt services. The following vocational rehabilitation services described in § 361.48(b) are exempt from a determination of the availability of comparable services and benefits under paragraph (a) of this section:
(1) Assessment for determining eligibility and vocational rehabilitation needs.
(2) Counseling and guidance, including information and support services to assist an individual in exercising informed choice.
(3) Referral and other services to secure needed services from other agencies, including other components of the statewide workforce development system, if those services are not available under this part.
(4) Job-related services, including job search and placement assistance, job retention services, follow-up services, and follow-along services.
(5) Rehabilitation technology, including telecommunications, sensory, and other technological aids and devices.
(6) Post-employment services consisting of the services listed under paragraphs (b)(1) through (5) of this section.
Page 55678
Finally, job-retention services and follow-along services are both types of job-related services. Job-retention services may include any vocational rehabilitation service (i.e., vocational rehabilitation counseling and guidance, maintenance, or tools) necessary to help an individual maintain employment. Follow-along services typically mean direct contact with an employed individual to provide support with issues arising from employment, such as on-the-job performance, or with addressing employment barriers, such as absenteeism or tardiness, that could jeopardize employment.
Page 55679
Comparable Services and Benefits (§ 361.53)
Accommodations and Auxiliary Aids and Services
Discussion: We appreciate the comments and recommendations about comparable services and benefits. Although many commenters suggested that we exempt accommodations and auxiliary aids and services from a search for comparable services and benefits, especially when they are needed to enable an individual to participate in services that are exempt from such a search, doing so would be contrary to the statute. Whereas some commenters noted that prior to WIOA, providing accommodations for auxiliary aids and services was typically done in support of another service and rarely as a standalone service, section 101(a)(8)(A)(i) of the Act, as amended by WIOA, specifically added accommodations or auxiliary aids and services to those services that require a determination of available comparable services and benefits before the DSU may provide them. Moreover, section 101(a)(8)(A)(i) specifically exempts certain services from this search, but accommodations or auxiliary aids and services are not among those that are exempt. We agree that there was an error in the cross-reference to proposed § 361.48(a), as noted by several commenters. We have made the correction.
Changes: We have revised final § 361.53(b), which cross-references § 361.48, to correct a typographical error that appeared in the NPRM. The correct cross-reference is § 361.48(b).
- Can states include a time limit for service provision to ensure only services that can be provided in the “very near future” are provided due to the nature of these cases?
Response: While there cannot be a specific “time limit” placed on these cases, agencies should develop and provide guidance for staff to identify what constitutes a job retention case that would be able to be served regardless of the agencies OOS and assignment to a disability priority category from those cases where an individual would be subject to the OOS category assignment and wait list such as those applicants and eligible individuals who may wish to find a new job or advance in their careers.