§ 7062. Assessment for Determining Eligibility and Priority for Services.

In order to determine whether an individual is eligible for vocational rehabilitation services, and the individual's priority under an Order of Selection implemented pursuant to Section 7053 of these regulations, the Department must conduct an assessment in the most integrated setting possible, consistent with the individual's needs and informed choice, and in accordance with the following provisions.

(a) The Department's determination of an applicant's eligibility for vocational rehabilitation services must be based only on the following requirements:

(1) A determination by qualified personnel, who need not be Department employees, that the applicant has a physical or mental impairment;

(2) A determination by qualified personnel, who need not be Department employees, that the applicant's physical or mental impairment constitutes or results in a substantial impediment to employment for the applicant;

(3) A determination by a Rehabilitation Counselor employed by the Department that the applicant requires vocational rehabilitation services to prepare for, secure, retain, or regain employment consistent with the applicant's unique strengths, resources, priorities, concerns, abilities, capabilities, interests, and informed choice; and

(4) A presumption, in accordance with (c) of this section, that the applicant can benefit from the provision of vocational rehabilitation services in terms of an employment outcome in an integrated setting.

(b) Personnel not employed by the Department who make the determination(s) specified in (a)(1) or (2) must:

(1) Possess the knowledge and expertise needed to make the determination(s); and

(2) Base the determination(s) on current information that is relevant and sufficient to support such determination(s).

(c) The Department must presume that an applicant who meets the eligibility requirements specified in (a)(1) and (2) of this section can benefit in terms of an employment outcome in an integrated setting, unless it demonstrates, based on clear and convincing evidence, that the applicant is incapable of benefiting from vocational rehabilitation services in terms of an employment outcome in an integrated setting due to the severity of the applicant's disability.

(d) When determining the eligibility of Social Security recipients and beneficiaries the following conditions shall apply:

(1) Any applicant who has been determined by the Social Security Administration (SSA) to be eligible for Social Security benefits under Title II (Social Security Disability Insurance (SSDI)) or Title XVI (Supplemental Security Income (SSI)) of the Social Security Act (42 USC Section 401 and 1381) because the individual is blind or disabled is -

(A) Presumed eligible for vocational rehabilitation services under (a) and (c) of this section; and

(B) Considered an individual with a significant disability as defined in Section 7017.5 of these regulations.

(2) If an applicant for vocational rehabilitation services asserts that he or she is eligible for Social Security benefits under Title II or Title XVI of the Social Security Act (and therefore is presumed eligible for vocational rehabilitation services under (d)(1)(A) of this section), but is unable to provide appropriate evidence, such as an award letter to support that assertion, the Department must verify the applicant's eligibility under Title II or Title XVI of the Social Security Act by contacting the Social Security Administration. The Department shall obtain verification within a reasonable period of time that enables the Department to determine the applicant's eligibility for vocational rehabilitation services within 60 days of the individual submitting an application for services in accordance with Section 7041(b) of these regulations.

(e) 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.

(f) Nothing in this section, including the provisions of (d)(1), shall be construed to create an entitlement to any vocational rehabilitation service.

(g) Except as provided in (h) and (i) of this section, the Department -

(1) Must base its determination of each of the basic eligibility requirements in (a) of this section on -

(A) A review and assessment of existing data, including:

1. Counselor observations including, but not limited to, observation of an obvious impairment, as in the case of loss of a limb.

2. Medical records.

3. Education records.

4. Information provided by the individual or the individual's family, particularly information used by education officials.

5. Determinations made by officials of other agencies.

(B) 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 trial work experiences, assistive technology devices and services, personal assistance services, and any other support services that are necessary to determine whether an individual is eligible.

(2) Must base its presumption under (d)(1) of this section that an applicant who has been determined eligible for Social Security benefits under Title II or Title XVI of the Social Security Act satisfies each of the basic eligibility requirements in (a) of this section on determinations made by the Social Security Administration.

(h) Prior to any determination that an individual with a disability is incapable of benefiting from vocational rehabilitation services in terms of an employment outcome in an integrated setting due to the severity of the individual's disability, the Department must conduct trial work experience as defined in Section 7029.1 of these regulations to determine whether or not there is clear and convincing evidence to support such a determination.

(i) Under limited circumstances if an individual cannot take advantage of trial work experiences or if options for trial work experiences have been exhausted before the Department is able to determine whether the individual can benefit from the provision of vocational rehabilitation services in terms of an employment outcome in an integrated setting, or whether there is clear and convincing evidence that the individual is incapable of benefiting from vocational rehabilitation services in terms of an employment outcome in an integrated setting due to the severity of the individual's disability, the Department must conduct an extended evaluation as defined in Section 7014 of these regulations.

(j) When the Department is operating under an Order of Selection implemented pursuant to Section 7053 of these regulations, the Department must base its priority category assignments on -

(1) A review of the data that was developed under (g) and (h) of this section to make the eligibility determination; and

(2) An assessment of additional data, including data developed under (i) of this section, to the extent necessary.

(k) The Rehabilitation Counselor shall document the basis on which the individual's eligibility has been established in a notice of eligibility. This notice, signed and dated by the Rehabilitation Counselor, shall be provided to the individual and a copy placed in the individual's record of services.

HISTORY

1. New subsection (b) filed 3-25-91; operative 4-24-91 (Register 91, No. 15).

2. New subsection (c) and amendment of Note filed 11-20-91; operative 1-20-92 (Register 92, No. 8).

3. Amendment of section heading, text and Note filed 6-6-94 as an emergency; operative 6-6-94 (Register 94, No. 23). A Certificate of Compliance must be transmitted to OAL by 10-4-94 or emergency language will be repealed by operation of law on the following day.

4. Certificate of Compliance as to 6-6-94 order including amendment of subsection (a) transmitted to OAL 8-30-94 and filed 10-13-94 (Register 94, No. 41).

5. Amendment of section heading, repealer and new section and amendment of Note filed 3-4-2004; operative 4-3-2004 (Register 2004, No. 10).

Note

Note: Authority cited: Sections 19006 and 19016, Welfare and Institutions Code. Reference: 29 USC 722; 34 CFR Sections 361.5(b)(16), 361.13, 361.42 and 361.47; and Sections 19011 and 19100, Welfare and Institutions Code.