Title of Regulation: 22VAC30-20. Provision of Vocational Rehabilitation Services (amending 22VAC30-20-90).

Statutory Authority: §§ 51.5-118 and 51.5-131 of the Code of Virginia.

Public Hearing Information: No public hearings are scheduled.

Public Comment Deadline: October 5, 2018.

Agency Contact: Leah Mills, Policy Analyst, Department for Aging and Rehabilitative Services, 8004 Franklin Farms Drive, Richmond, VA 23229, telephone (804) 662-7610, FAX (804) 662-7663, TTY (800) 464-9950, or email leah.mills@dars.virginia.gov.

Basis: Section 51.5-131 of the Code of Virginia gives power and duty to the Commissioner of the Department for Aging and Rehabilitative Services (DARS) to promulgate regulations necessary to carry out the provisions of laws administered by the department.

34 CFR 361.36 requires the department to develop and implement an order of selection if a lack of funds prevents it from providing the full range of vocational rehabilitation services to all eligible individuals.

Purpose: The intent of this amendment is to reduce the priority categories for order of selection from four to three. The Rehabilitation Services Administration (RSA), the federal agency that regulates the state-federal vocational rehabilitation program, is requiring that DARS reduce the number of its categories for the order of selection for persons determined to be eligible for services. The reason given is that there is not enough difference between current priority category two and current priority category three. Therefore, RSA is requiring that priority category two and priority category three be combined into one category. This action will protect the welfare of citizens because it more clearly stipulates the priority categories that are served by Virginia's vocational rehabilitation program. This regulatory action will ensure that the regulation content is clearly written. Clarity in regulation content is essential to ensuring that the individual's health and safety needs are most appropriately met.

Substance: When DARS does not have enough funds to serve all individuals eligible for the state-federal vocational rehabilitation program, it may elect to go on an order of selection. This requires that DARS establish an order of priority categories by which it will serve eligible individuals. Priority categories are based on the level of significance of the eligible person's disability and the functional limitations imposed by that disability. By combining two previous categories into one, this amendment is reducing the number of priority categories from four to three. Thus, individuals who would have been in priority category three will now be placed into priority category two.

Issues: The advantage to the public and to the Commonwealth is that this amendment will make the regulation simpler and easier to understand. There is no disadvantage to the public or the agency.

Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. The Provision of Vocational Rehabilitation Services regulation includes order of selection criteria for when the Department for Aging and Rehabilitative Services (DARS) cannot provide the full range of vocational rehabilitation services to all eligible individuals who apply because of insufficient resources. At the direction of the federal Rehabilitation Services Administration (RSA), DARS proposes to amend the order of selection criteria.

Result of Analysis. The benefits likely exceed the costs for all proposed changes.

Estimated Economic Impact. Federal regulation 34 CFR 361.36¹ requires the department to develop and implement an order of selection if a lack of funds prevents it from providing the full range of vocational rehabilitation services to all eligible individuals. The current regulation has order of selection criteria as follows:

1. Persons eligible and presently receiving services under an individualized plan for employment;

2. Persons referred and needing diagnostic services to determine eligibility; and

3. Persons determined to be eligible for services, but not presently receiving services under an individualized plan for employment, shall be served according to the following order of priorities:

a. Priority I. An individual with a most significant disability in accordance with the definition in 22VAC30-20-10;²

b. Priority II. An individual with a significant disability that results in serious functional limitations in two functional capacities;

c. Priority III. An individual with a significant disability that results in a serious functional limitation in one functional capacity; and

d. Priority IV. Other persons determined to be disabled, in order of eligibility determination.

The RSA, the federal agency that regulates the state-federal vocational rehabilitation program, is requiring that DARS reduce the number of its categories for the order of selection for persons determined to be eligible for services. The reason given is that there is not enough difference between current priority category two and current priority category three. Therefore, RSA is requiring that priority category two and priority category three be combined into one category. To accomplish this, DARS proposes to: amend Priority II to "An individual with a significant disability that results in a serious functional limitation in at least one functional capacity," eliminate the current Priority III text, and relabel the current Priority IV as Priority III.

According to DARS, the proposed changes are not expected to significantly affect which applicants receive services. The ordering of people would be close to the same. Following RSA's direction helps ensure the continued receipt of federal funds for vocational rehabilitation services. Thus the proposed amendments would produce a net benefit.

Businesses and Entities Affected. The proposed amendments pertain to individuals who are qualified to receive vocational rehabilitation services. In fiscal year 2016, 29,399 individuals received vocational rehabilitation services through DARS' vocational rehabilitation program.³

Localities Particularly Affected. The proposed amendments do not disproportionately affect particular localities.

Projected Impact on Employment. The proposed amendments do not significantly affect employment.

Effects on the Use and Value of Private Property. The proposed amendments do not affect the use and value of private property.

Real Estate Development Costs. The proposed amendments do not affect real estate development costs.

Small Businesses:

Definition. Pursuant to § 2.2-4007.04 of the Code of Virginia, small business is defined as "a business entity, including its affiliates, that (i) is independently owned and operated and (ii) employs fewer than 500 full-time employees or has gross annual sales of less than $6 million."

Costs and Other Effects. The proposed amendments do not affect costs for small businesses.

Alternative Method that Minimizes Adverse Impact. The proposed amendments do not adversely affect small businesses.

Adverse Impacts:

Businesses. The proposed amendments do not adversely affect businesses.

Localities. The proposed amendments do not adversely affect localities.

Other Entities. The proposed amendments do not adversely affect other entities.

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¹See https://www.law.cornell.edu/cfr/text/34/361.36.

²The definition in 22VAC30-20-10 is "an individual with a significant disability who meets the department's criteria for an individual with a most significant disability." DARS reports the following criteria. The individual's disability shall be considered to be most significant when the counselor documents that the individual meets all three of the following criteria:

1. Is an individual with a significant disability, and

2. Has a physical or mental impairment that seriously limits three or more functional capacities in terms of an employment outcome, and

3. Whose vocational rehabilitation can be expected to require multiple core vocational rehabilitation services for six months or more.

³Source: Virginia State Rehabilitation Council 2016 Annual Report.

Agency's Response to Economic Impact Analysis: The Virginia Department for Aging and Rehabilitative Services concurs with the economic impact analysis performed by the Virginia Department of Planning and Budget.

Summary:

The proposed amendment reduces the number of categories for order of selection from four to three by combining priority categories II and III. In the event that the Department for Aging and Rehabilitative Services cannot provide the full range of vocational rehabilitation services to all eligible individuals who apply for these services because of insufficient resources, an order of selection may be implemented to determine those persons to be provided services.  

22VAC30-20-90. Order of selection for services.

A. In the event that the full range of vocational rehabilitation services cannot be provided to all eligible individuals who apply for services because of insufficient resources, an order of selection system may be implemented by the commissioner following consultation with the State Rehabilitation Council. The order of selection shall determine those persons to be provided services. It shall be the policy of the department to encourage referrals and applications of all persons with disabilities and, to the extent resources permit, provide services to all eligible persons.

The following order of selection is implemented when services cannot be provided to all eligible persons:

1. Persons eligible and presently receiving services under an individualized plan for employment;

2. Persons referred and needing diagnostic services to determine eligibility; and

3. Persons determined to be eligible for services, but not presently receiving services under an individualized plan for employment, shall be served according to the following order of priorities:

a. Priority I. An individual with a most significant disability in accordance with the definition in 22VAC30-20-10;

b. Priority II. An individual with a significant disability that results in a serious functional limitations limitation in two at least one functional capacities capacity; and

c. Priority III. An individual with a significant disability that results in a serious functional limitation in one functional capacity; and

d. Priority IV. Other persons determined to be disabled, in order of eligibility determination.

B. An order of selection shall 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 the individual; or (vii) the income level of an individual or an individual's family.

C. In administering the order of selection, the department shall (i) implement the order of selection on a statewide basis; (ii) notify all eligible individuals of the priority categories in the order of selection, their assignment to a particular category and their right to appeal their category assignment; (iii) continue to provide all needed services to any eligible individual who has begun to receive services under an individualized plan for employment prior to the effective date of the order of selection, irrespective of the severity of the individual's disability; and (iv) 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 department shall renegotiate these funding arrangements so that they are consistent with the order of selection.

D. Consultation with the State Rehabilitation Council shall include (i) the need to establish an order of selection, including any reevaluation of the need; (ii) priority categories of the particular order of selection; (iii) criteria for determining individuals with the most significant disabilities; and (iv) administration of the order of selection.