Title of Regulation: 22VAC30-20. Provision of Vocational Rehabilitation Services (amending 22VAC30-20-10, 22VAC30-20-20, 22VAC30-20-30, 22VAC30-20-40, 22VAC30-20-70, 22VAC30-20-80, 22VAC30-20-95, 22VAC30-20-100, 22VAC30-20-110, 22VAC30-20-120, 22VAC30-20-130, 22VAC30-20-150, 22VAC30-20-170, 22VAC30-20-181, 22VAC30-20-190, 22VAC30-20-200; adding 22VAC30-20-195, 22VAC30-20-210; repealing 22VAC30-20-60).

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

Effective Date: October 3, 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.

Summary:

The amendments (i) provide for reemployment transition services for students with disabilities; (ii) require that an individual obtain competitive integrated employment before his vocational rehabilitation case can be closed as successfully employed; (iii) disallow the case of a vocational rehabilitation recipient to be closed as successful if the recipient is earning less than the prevailing wage for the individual's employment; and (iv) require that individuals with disabilities receive vocational counseling before they can be employed in positions earning less than minimum wage. The amendments bring the existing regulation into conformity with the federal regulations for the Workforce Innovation and Opportunity Act (WIOA).

22VAC30-20-10. Definitions.

The following words and terms when used in this chapter shall have the following meanings, unless the context clearly indicates otherwise.

"Act" means the Rehabilitation Act of 1973 (29 USC § 701 et seq.), as amended.

"Applicant" means an individual who submits an application for vocational rehabilitation services.

"Appropriate modes of communication" means specialized aids and supports that enable an individual with a disability to comprehend and respond to information that is being communicated. Appropriate modes of communication include, but are not limited to, the use of interpreters, open and closed captioned videos, specialized telecommunications services and audio recordings, Brailled and large-print materials, materials in electronic formats, augmentative communication devices, graphic presentations, and simple language materials.

"Assessment for determining eligibility and vocational rehabilitation needs" means, as appropriate in each case, a review of existing data as described in 22VAC30-20-30 to determine if an individual meets the eligibility requirements for vocational rehabilitation services as described in 22VAC30-20-40, and to assign priority for an order of selection described in 22VAC30-20-90.

"Assistive technology" means any item, piece of equipment, or product system, whether acquired commercially off the shelf, modified, or customized, that is used to increase, maintain, or improve the functional capabilities of an individual with a disability.

"Assistive technology service" means any service that directly assists an individual with a disability in the selection, acquisition, or use of an assistive technology device, including:

1. The evaluation of the needs of an individual with a disability, including a functional evaluation of the individual in his customary environment;

2. Purchasing, leasing, or otherwise providing for the acquisition by an individual with a disability of an assistive technology device;

3. Selecting, designing, fitting, customizing, adapting, applying, maintaining, repairing, or replacing assistive technology devices;

4. Coordinating and using other therapies, interventions, or services with assistive technology devices, such as those associated with existing education and rehabilitation plans and programs;

5. Training or technical assistance for an individual with a disability or, if appropriate, the family members, guardians, advocates, or authorized representatives of the individual; and

6. Training or technical assistance for professionals (including individuals providing education and rehabilitation services), employers, or others who provide services to, employ, or are otherwise substantially involved in the major life functions of individuals with disabilities, to the extent that training or technical assistance is necessary to the achievement of an employment outcome by an individual with a disability.

"Audiological examination" means the testing of the sense of hearing.

"Clear and convincing evidence" means that the designated state unit shall have a high degree of certainty before it can conclude that an individual is incapable of benefiting from services in terms of an employment outcome. The clear and convincing standard constitutes the highest standard used in our civil system of law and is to be individually applied on a case-by-case basis. The term "clear" means unequivocal. Given these requirements, a review of existing information generally would not provide clear and convincing evidence. For example, the use of an intelligence test result alone would not constitute clear and convincing evidence. Clear and convincing evidence might include a description of assessments, including situational assessments and supported employment assessments, from service providers who have concluded that they would be unable to meet the individual's needs due to the severity of the individual's disability. The demonstration of clear and convincing evidence must include, if appropriate, a functional assessment of skill development activities, with any necessary supports (including assistive technology), in real life settings. (S. Rep. No. 357, 102d Cong., 2d. Sess. 37-38 (1992))

"Client Assistance Program" means the program located within the disAbility Law Center of Virginia for the purpose of advising applicants or eligible individuals about all available services under the Rehabilitation Act of 1973 (29 USC § 701 et seq.), as amended, and to assist applicants and eligible individuals in their relationship with programs, projects, and facilities providing vocational rehabilitation services.

"Commissioner" means the Commissioner of the Department for Aging and Rehabilitative Services.

"Community rehabilitation program" means a program that directly provides or facilitates the provision of one or more of the following vocational rehabilitation services to individuals with disabilities to enable those individuals to maximize their opportunities for employment, including career advancement:

1. Medical, psychiatric, psychological, social, and vocational services that are provided under one management;

2. Testing, fitting, or training in the use of prosthetic and orthotic devices;

3. Recreational therapy;

4. Physical and occupational therapy;

5. Speech, language, and hearing therapy;

6. Psychiatric, psychological, and social services, including positive behavior management;

7. Assessment for determining eligibility and vocational rehabilitation needs;

8. Rehabilitation technology;

9. Job development, placement, and retention services;

10. Evaluation or control of specific disabilities;

11. Orientation and mobility services for individuals who are blind;

12. Extended employment;

13. Psychosocial rehabilitation services;

14. Supported employment services and extended services;

15. Customized employment;

16. Services to family members, if necessary, to enable the applicant or eligible individual to achieve an employment outcome;

16. 17. Personal assistance services; or

17. 18. Services similar to the services described in subdivisions 1 through 16 17 of this definition.

For the purposes of this definition, the word "program" means an agency, organization, or institution, or unit of an agency, organization, or institution, that directly provides or facilitates the provision of vocational rehabilitation services as one of its major functions.

"Comparable services and benefits" means services and benefits, including accommodations and auxiliary aids and services, that are provided or paid for, in whole or in part, by other federal, state, or local public agencies, by health insurance, or by employee benefits; available to the individual at the time needed to ensure the individual's progress toward achieving the employment outcome in the individual's individualized plan for employment; and commensurate to the services that the individual would otherwise receive from the vocational rehabilitation agency. For the purposes of this definition, comparable benefits do not include awards and scholarships based on merit.

"Competitive integrated employment" means work in the competitive labor market that (i) is performed on a full-time or part-time basis in an integrated setting, (including self-employment) and for which an individual is compensated at or above the minimum wage, rate required under state or local minimum wage law for the place of employment but not less than the customary wage and level of benefits paid by the employer for the same or similar work performed by individuals who are not disabled without disabilities in comparable positions who have similar training, experience, and skills; (ii) in the case of an individual who is self-employed, yields an income that is comparable to the income received by other individuals who are not individuals with disabilities and who are self-employed in similar occupations or similar tasks and who have similar training, experience, and skills; (iii) is typically found in the community where the employee with a disability interacts for the purpose of performing the duties of the position with other individuals without disabilities to the same extent that employees who do not have disabilities interact in comparable positions; and (iv) presents, as appropriate, opportunities for advancement that are similar to those for other individuals who are not individuals with disabilities and who have similar positions.

"Customized employment" means competitive integrated employment based on the unique strengths, needs, and interests of an individual with a significant disability, which is designed to meet the specific abilities of the individual with a significant disability and the business needs of the employer and is carried out through flexible strategies, such as (i) job exploration by the individual; (ii) customizing a job description based on current employer needs or on previously unidentified and unmet employer needs; (iii) developing a set of job duties, a work schedule and job arrangements, and specifics of supervision (including performance evaluation and reviews) and determining job location; (iv) using a professional representative chosen by the individual, or if elected self-representation, to work with an employer to facilitate placement; and (v) providing services and supports at the job location.

"Department" means the Department for Aging and Rehabilitative Services. The department is considered the "designated state agency" or "state agency," meaning the sole state agency designated in accordance with 34 CFR 361.13(a) to administer or supervise local administration of the state plan for vocational rehabilitation services. The department also is considered the "designated state unit" or "state unit," meaning the state agency, vocational rehabilitation bureau, division, or other organizational unit that is primarily concerned with vocational rehabilitation or vocational and other rehabilitation of individuals with disabilities and that is responsible for the administration of the vocational rehabilitation program of the state agency as required under 34 CFR 361.13(b), or the state agency that is primarily concerned with vocational rehabilitation or vocational and other rehabilitation of individuals with disabilities.

"Eligible individual" means an applicant for vocational rehabilitation services who meets the eligibility requirements of 22VAC30-20-40.

"Employment outcome" means, with respect to an individual, entering, advancing in, or retaining full-time or, if appropriate, part-time competitive integrated employment in the integrated labor market;, as defined in this section (including customized employment, self-employment, telecommuting, or business ownership), or supported employment or any other type of employment in an integrated setting including self-employment, telecommuting, or business ownership as defined in this section, that is consistent with an individual's strengths, resources, priorities, concerns, abilities, capabilities, interests, and informed choice. (34 CFR 361.5(b)(16)) (34 CFR 361.5(c)(15))

"Evaluation of vocational rehabilitation potential" means, as appropriate, in each case (i) a preliminary diagnostic study to determine that an individual is eligible for vocational rehabilitation services; (ii) a thorough diagnostic study consisting of a comprehensive evaluation of pertinent factors bearing on the individual's impediment to employment and vocational rehabilitation potential, in order to determine which vocational rehabilitation services may be of benefit to the individual in terms of employability; (iii) the provision of goods or services necessary to determine the nature of the disability and whether it may reasonably be expected that the individual can benefit from vocational rehabilitation services in terms of an employment outcome; (iv) referrals to other agencies or organizations for services, when appropriate; and (v) the provision of vocational rehabilitation services to an individual during an extended evaluation of rehabilitation potential for the purpose of determining whether the individual with a disability is capable of achieving an employment outcome.

"Extended employment" means work in a nonintegrated or sheltered setting for a public or private nonprofit agency or organization that provides compensation in accordance with the Fair Labor Standards Act (29 USC § 201 et seq.). (34 CFR 361.5(b)(20)) (34 CFR 361.5(c)(18))

"Extended evaluation" means the provision of vocational rehabilitation services necessary for a determination of vocational rehabilitation potential.

"Extended services" as used in the definition of "supported employment" means ongoing support services and other appropriate services that are (i) needed to support and maintain an individual with a most significant disability in supported employment and that are; (ii) organized or made available, singly or in combination, in such a way as to assist an eligible individual in maintaining supported employment; (iii) based on the needs of an eligible individual, as specified in an individualized plan for employment; (iv) provided by a state agency, a private nonprofit organization, employer, or any other appropriate resource, from funds other than funds received under 34 CFR Part 363 after an individual with a most significant disability has made the transition from support provided by the department.; and (v) provided to a youth with a most significant disability by the department in accordance with requirements set forth in 22VAC30-20-110 and 22VAC30-20-120 of this chapter and 34 CFR Part 363 for a period of time not to exceed four years, or at such time a youth reached age 25 years and no longer meets the definition of youth with a disability in this section, whichever occurs first.

"Extreme medical risk" means a probability of substantially increasing functional impairment or death if medical services, including mental health services, are not provided expeditiously.

"Family member" or "member of the family" means an individual (i) who is either a relative or guardian of an applicant or eligible individual, or lives in the same household as an applicant or eligible individual; (ii) who has a substantial interest in the well-being of that individual; and (iii) whose receipt of vocational rehabilitation services is necessary to enable the applicant or eligible individual to achieve an employment outcome.

"Higher education" means training or training services provided by universities, colleges, community or junior colleges, vocational schools, technical institutes, or hospital schools of nursing.

"IDEA" means the federal Individuals with Disabilities Education Act (20 USC § 1400 et seq.).

"Impartial hearing officer" means an individual who is not an employee of a public agency (other than an administrative law judge, hearing examiner, or employee of an institution of higher education); is not a member of the State Rehabilitation Council for the department; has not been involved previously in the vocational rehabilitation of the applicant or eligible individual recipient of services; has knowledge of the delivery of vocational rehabilitation services, the vocational rehabilitation portion of the unified or combined state plan, and the federal and state regulations governing the provision of services; has received training with respect to the performance of official duties; and has no personal, professional, or financial interest that would be in conflict with the objectivity of the individual. An individual is not considered to be an employee of a public agency for the purposes of this definition solely because the individual is paid by the agency to serve as a hearing officer. (34 CFR 361.5(b)(25)) (34 CFR 361.5(c)(24))

"Individual who is blind" means a person who is blind within the meaning of applicable state law.

"Individual with a disability," except as provided in 34 CFR 361.5(b)(29) 34 CFR 361.5(c)(28), means an individual (i) who has a physical or mental impairment; (ii) whose impairment constitutes or results in a substantial impediment to employment; and (iii) who can benefit in terms of an employment outcome from the provision of vocational rehabilitation services. (34 CFR 361.5(b)(28)) (34 CFR 361.5(c)(27))

"Individual with a most significant disability" means an individual with a significant disability who meets the department's criteria for an individual with a most significant disability. (34 CFR 361.5(b)(30)) (34 CFR 361.5(c)(29))

"Individual with a significant disability" means an individual with a disability (i) who has a severe physical or mental impairment that seriously limits one or more functional capacities (such as mobility, communication, self-care, self-direction, interpersonal skills, work tolerance, or work skills) in terms of an employment outcome; (ii) whose vocational rehabilitation can be expected to require multiple vocational rehabilitation services over an extended period of time; and (iii) who has one or more physical or mental disabilities resulting from amputation, arthritis, autism, blindness, burn injury, cancer, cerebral palsy, cystic fibrosis, deafness, head injury, heart disease, hemiplegia, hemophilia, respiratory or pulmonary dysfunction, intellectual disability, mental illness, multiple sclerosis, muscular dystrophy, musculoskeletal disorders, neurological disorders (including stroke and epilepsy), spinal cord conditions (including paraplegia and quadriplegia), sickle cell anemia, specific learning disability, end-stage renal disease, or another disability or combination of disabilities determined on the basis of an assessment for determining eligibility and vocational rehabilitation needs to cause comparable substantial functional limitation. (34 CFR 361.5(b)(31)) (34 CFR 361.5(c)(30))

"Individual's representative" means any representative chosen by an applicant or eligible individual, as appropriate, including a parent, guardian, other family member, or advocate, unless a representative has been appointed by a court to represent the individual, in which case the court-appointed representative is the individual's representative. (34 CFR 361.5(b)(32)) (34 CFR 361.5(c)(31))

"Integrated setting," with respect to the provision of services, means a setting typically found in the community in which applicants or eligible individuals interact with nondisabled individuals other than nondisabled individuals who are providing services to those applicants or eligible individuals. "Integrated setting," with respect to an employment outcome, means a setting typically found in the community in which applicants or eligible individuals interact with nondisabled individuals, other than nondisabled individuals who are providing services to those applicants or eligible individuals, to the same extent that nondisabled individuals in comparable positions interact with other persons. (34 CFR 361.5(b)(33)) where the employee with a disability interacts, for the purposes of performing the duties of the position, with other employees within the particular work unit and the entire work site, and, as appropriate to the work performed, other persons (e.g., customers and vendors) who are not individuals with disabilities (not including supervisory personnel or individuals who are providing services to such employee) to the same extent that employees who are not individuals with disabilities and who are in comparable positions interact with these persons. (34 CFR 361.5(c)(32))

"Local workforce investment development board" means a local workforce investment board established under § 117 of the Workforce Investment Act of 1998. (34 CFR 361.5(b)(34)) as defined in § 3 of the Workforce Innovation and Opportunity Act (20 USC § 3101 et seq.). (34 CFR 361.5(c)(33))

"Maintenance" means monetary support provided to an individual for expenses, such as food, shelter, and clothing, that are in excess of the normal expenses of the individual and that are necessitated by the individual's participation in an assessment for determining eligibility and vocational rehabilitation needs or the individual's receipt of vocational rehabilitation services under an individualized plan for employment. (34 CFR 361.5(b)(35)) (34 CFR 361.5(c)(34))

"Mediation" means the act or process of using an independent third party to act as a mediator, intermediary, or conciliator to assist persons or parties in settling differences or disputes prior to pursuing formal administrative or other legal remedies. Mediation under the program must be conducted in accordance with the requirements in 34 CFR 361.57(d) by a qualified impartial mediator. (34 CFR 361.5(b)(36)) (34 CFR 361.5(c)(35))

"Nonprofit," with respect to a community rehabilitation program, means a community rehabilitation program carried out by a corporation or association, no part of the net earnings of which inures, or may lawfully inure, to the benefit of any private shareholder or individual and the income of which is exempt from taxation under § 501(c)(3) of the Internal Revenue Code of 1986. (34 CFR 361.5(b)(37)) (34 CFR 361.5(c)(36))

"One-stop center" means a center established under the Workforce Innovation and Opportunity Act (20 USC § 3101 et seq.) and designed to provide a full range of assistance to job seekers under one roof. Established under the Workforce Investment Act of 1998, the. The centers offer training, career counseling, job listings, and similar employment related services.

"Ongoing support services," as used in the definition of "supported employment," means services that are needed to support and maintain an individual with a most significant disability, including a youth with a most significant disability, in supported employment; identified based on a determination by the department of the individual's needs as specified in an individualized plan for employment; and furnished by the department from the time of job placement until transition to extended services, unless post-employment services are provided following transition, and thereafter by one or more extended services providers throughout the individual's term of employment in a particular job placement or multiple placements if those placements are being provided under a program of transitional employment. These services shall include an assessment of employment stability and provision of specific services or the coordination of services at or away from the worksite that are needed to maintain stability based on, at a minimum, twice-monthly monitoring at the worksite of each individual in supported employment;, or if under specific circumstances, especially at the request of the individual, the individualized plan for employment provides for off-site monitoring, twice-monthly meetings with the individual. These services shall consist of any particularized assessment supplementary to the comprehensive assessment of rehabilitation needs described in subsection A of 22VAC30-20-100; the provision of skilled job trainers who accompany the individual for intensive job skill training at the worksite; job development and training; social skills training; regular observation or supervision of the individual; follow-up services including regular contact with the employers, the individuals, the parents, family members, guardians, advocates or authorized representatives of the individuals, and other suitable professional and informed advisors in order to reinforce and stabilize the job placement; facilitation of natural supports at the worksite; any other service identified in the scope of vocational rehabilitation services for individuals described in 22VAC30-20-120; or any service similar to the foregoing services. (34 CFR 361.5(b)(38)) (34 CFR 361.5(c)(37))

"Personal assistance services" means a range of services, including, among other things, training in managing, supervising, and directing personal assistance services, provided by one or more persons designed to assist an individual with a disability to perform daily living activities on or off the job that the individual would typically perform without assistance if the individual did not have a disability. The services must be designed to increase the individual's control in life and ability to perform everyday activities on or off the job. The services must be necessary to the achievement of an employment outcome and may be provided only while the individual is receiving other vocational rehabilitation services. The services may include training in managing, supervising, and directing personal assistance services. (34 CFR 361.5(c)(38))

"Physical and mental restoration services" means corrective surgery or therapeutic treatment that is likely, within a reasonable period of time, to correct or modify substantially a stable or slowly progressive physical or mental impairment that constitutes a substantial impediment to employment; diagnosis of and treatment for mental or emotional disorders by qualified personnel in accordance with state licensure laws; dentistry; nursing services; necessary hospitalization (either inpatient or outpatient care) in connection with surgery or treatment and clinic services; drugs and supplies; prosthetic, orthotic, or other assistive devices, including hearing aids; eyeglasses and visual services, including visual training, and the examination and services necessary for the prescription and provision of eyeglasses, contact lenses, microscopic lenses, telescopic lenses, and other special visual aids provided by the department in accordance with the cooperative agreement established with the Department for the Blind and Vision Impaired and prescribed by personnel that are qualified in accordance with state licensure laws; podiatry; physical therapy; occupational therapy; speech or hearing therapy; mental health services; treatment of either acute or chronic medical complications and emergencies that are associated with or arise out of the provision of physical and mental restoration services or that are inherent in the condition under treatment; special services for the treatment of individuals with end-stage renal disease, including transplantation, dialysis, artificial kidneys, and supplies; and other medical or medically related rehabilitation services.

"Physical or mental impairment" means any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological, musculoskeletal, special sense organs, respiratory (including speech organs), cardiovascular, reproductive, digestive, genitourinary, hemic, and lymphatic, skin, and endocrine; or any mental or psychological disorders such as intellectual disability, organic brain syndrome, emotional or mental illness, and specific learning disabilities. (34 CFR 361.5(b)(41)) (34 CFR 361.5(c)(40))

"Post-employment services" means one or more of the services identified in 22VAC30-20-120 that are provided subsequent to the achievement of an employment outcome and that are necessary for an individual to maintain, regain, or advance in employment consistent with the individual's unique strengths, resources, priorities, concerns, abilities, capabilities, and interests, and informed choice. (34 CFR 361.5(b)(42)) (34 CFR 361.5(c)(41))

"Pre-employment transition services" means the required activities and authorized activities specified in 34 CFR 361.48(a)(2) and (3). (34 CFR 361.5(c)(42))

"Prevocational training" means individual and group instruction or counseling, the controlled use of varied activities, and the application of special behavior modification techniques. Individuals or patients are helped to (i) develop physical and emotional tolerance for work demands and pressures, (ii) acquire personal-social behaviors which would make them acceptable employees and coworkers on the job, and (iii) develop the basic manual, academic, and communication skills needed to acquire basic job skills.

"Qualified and impartial mediator" means an individual who is not an employee of a public agency (other than an administrative law judge, hearing examiner, employee of a state office of mediators, or employee of an institution of higher education); is not a member of the State Rehabilitation Council for the department; has not been involved previously in the vocational rehabilitation of the applicant or eligible individual recipient of services; is knowledgeable of the vocational rehabilitation program and the applicable federal and state laws, regulations, and policies governing the provision of vocational rehabilitation services; has been trained in effective mediation techniques consistent with any state approved or recognized certification, licensing, registration, or other requirements; and has no personal, professional, or financial interest that would be in conflict with the objectivity of the individual during the mediation proceedings. An individual serving as a mediator is not considered to be an employee of the department for the purposes of this definition solely because the individual is paid by the department to serve as a mediator. (34 CFR 361.5(b)(43)) (34 CFR 361.5(c)(43))

"Rehabilitation technology" means the systematic application of technologies, engineering methodologies, or scientific principles to meet the needs of, and address the barriers confronted by, individuals with disabilities in areas that include education, rehabilitation, employment, transportation, independent living, and recreation. The term includes rehabilitation engineering, assistive technology devices, and assistive technology services. (34 CFR 361.5(c)(45))

"State" means the Commonwealth of Virginia.

"State plan" means the state plan for vocational rehabilitation services portion of the unified or combined state plan submitted under 34 CFR 361.10(c). (34 CFR 361.5(b)(51)) 34 CFR 361.10.

"State workforce investment development board" means a state workforce investment development board as established under § 111 of the Workforce Investment Act of 1998. (34 CFR 361.5(b)(49)) § 3 of the Workforce Innovation and Opportunity Act (20 USC 3101 et seq.). (34 CFR 361.5(c)(49))

"Student with a disability" means an individual with a disability in secondary, postsecondary, or other recognized education program who (i) is not younger than the earliest age for the provision of transition services under § 614(d)(1)(A)(i)(VIII) of IDEA, or if the state elects to use a lower minimum age for the receipt of pre-employment transition services under IDEA, is not younger than that minimum age; (ii) is not older than the maximum age allowed by state law for receipt of services under IDEA; and (iii) is eligible for and receiving special education or related services under Part B of IDEA or is a student who is an individual with a disability for purposes of § 504 of the Act. (34 CFR 361.5(c)(51))

"Substantial impediment to employment" means that a physical or mental impairment (in light of attendant medical, psychological, vocational, educational, and other related factors) hinders an individual from preparing for, entering into, engaging in, advancing in, or retaining employment consistent with the individual's abilities and capabilities. (34 CFR 361.5(c)(52))

"Supported employment" means (i) competitive integrated employment in an integrated setting or employment in integrated work settings in which individuals are working toward competitive employment, including customized employment, that is individualized and customized, consistent with the strengths, resources, priorities, concerns, abilities, capabilities, unique strengths, abilities, interests, and informed choice of the individuals with individual, including ongoing support services for individuals with the most significant disabilities, for whom competitive integrated employment has not traditionally historically occurred or for whom competitive integrated employment has been interrupted or intermittent as a result of a significant disability, and who, because of the nature and severity of their the individual's disabilities, need needs intensive supported employment services from the department and extended services and extended services after the transition from support by the department, in order to perform this work or (ii) transitional employment for individuals with the most significant disabilities due to mental illness. (34 CFR 361.5(b)(53)). (34 CFR 361.5(c)(53))

"Supported employment services" means ongoing support services, including customized employment, and other appropriate services needed to support and maintain an individual with a most significant disability, including a youth with a most significant disability, in supported employment that are provided by the department (i) for a period of time not to exceed 18 months, unless under special circumstances the eligible individual and the rehabilitation counselor or coordinator jointly agree to extend the time to achieve the employment outcome identified in the individualized plan for employment and (ii) following transition as post-employment services that are unavailable from an extended services provider and that are necessary to maintain or regain the job placement or advance in employment. (34 CFR 361.5(b)(54)) (i) organized and made available, singly or in combination, in such a way as to assist an eligible individual to achieve competitive integrated employment; (ii) based on a determination of the needs of an eligible individual, as specified in an individualized plan for employment; (iii) provided by the department for a period of time not to exceed 24 months, unless under special circumstances the eligible individual and the rehabilitation counselor jointly agree to extend the time to achieve the employment outcome identified in the individualized plan for employment; and (iv) following transition, as post-employment services that are unavailable from an extended services provider and that are necessary to maintain or regain the job placement or advance in employment. (34 CFR 361.5(c)(54))

"Transition services" means a coordinated set of activities for a student or youth with a disability designed within an outcome-oriented process that promotes movement from school to post-school activities, including postsecondary education, vocational training, competitive integrated employment (including supported employment), supported employment, continuing and adult education, adult services, independent living, or community participation. The coordinated set of activities must be based upon the individual student's or youth's needs, taking into account the student's or youth's preferences and interests, and must include instruction, community experiences, the development of employment and other post-school adult living objectives, and, if appropriate, acquisition of daily living skills and functional vocational evaluation. Transition services must promote or facilitate the achievement of the employment outcome identified in the student's or youth's individualized plan for employment. (34 CFR 361.5(b)(55)) and include outreach to and engagement of the parents, or as appropriate, the representative of such a student or youth with a disability. (34 CFR 361.5(c)(55) 

"Transitional employment," as used in the definition of "supported employment," means a series of temporary job placements in competitive work in integrated settings with ongoing support services for individuals with the most significant disabilities due to mental illness. In transitional employment, the provision of ongoing support services must include continuing sequential job placements until job permanency is achieved.

"Transportation" means travel and related expenses that are necessary to enable an applicant or eligible individual to participate in a vocational rehabilitation service, including expenses for training in the use of public transportation vehicles and systems. (34 CFR 361.5(b)(57)) (34 CFR 361.5(c)(56))

"Vocational rehabilitation potential" mean means the ability of the individual with a disability to benefit in terms of an employment outcome from the provision of vocational rehabilitation services.

"Vocational rehabilitation services" means those services listed in 22VAC30-20-120.

"WIOA" means the federal Workforce Innovation and Opportunity Act (29 USC § 3101 et seq.).

"Youth with a disability" means an individual with a disability who is not younger than 14 years of age and not older than 24 years of age.

22VAC30-20-20. Processing referrals and applications.

A. Referrals. The department must establish and implement standards for the prompt and equitable handling of referrals of individuals for vocational rehabilitation services, including referrals of individuals made through a one-stop center. The standards must include timelines for making good faith efforts to inform these individuals of application requirements and to gather information necessary to initiate an assessment for determining eligibility and priority for services. (34 CFR 361.41(a))

B. Applications.

1. Once an individual has submitted an application for vocational rehabilitation services, including applications made through common intake procedures in one-stop centers under § 121 of the Workforce Innovation and Opportunity Act, an eligibility determination shall be made within 60 days, unless (i) exceptional and unforeseen circumstances beyond the control of the department preclude making a determination within 60 days and the department and the individual agree to a specific extension of time; or (ii) an exploration of the individual's abilities, capabilities, and capacity to perform in work situations is carried out or, if appropriate, an extended evaluation is necessary. (34 CFR 361.41(b)(1)) in accordance with 34 CFR 361.42(e). (34 CFR 361.41(b))

2. An individual is considered to have submitted an application when the individual or the individual's representative, as appropriate (i) has completed and signed an agency application form, a common intake application form in a one-stop center requesting vocational rehabilitation services, or has otherwise requested services from the department; (ii) has provided information to the department that is necessary to initiate an assessment to determine eligibility and priority for services; and (iii) is available to complete the assessment process. (34 CFR 361.41(b)(2))

3. The department shall ensure that its application forms are widely available throughout the state, particularly in the one-stop centers. (34 CFR 361.41(b)(3))

22VAC30-20-30. 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 for services (if the state is operating under an order of selection), the department shall conduct an assessment for determining eligibility and priority for services. The assessment shall be conducted in the most integrated setting possible, consistent with the individual's needs and informed choice, and in accordance with the following provisions: this section.

1. Eligibility requirements are applied without regard to race, age, gender, color, or national origin;:

a. Race;

b. Age;

c. Sex;

d. Color;

e. National origin;

f. Particular service needs;

g. Anticipated costs of services required by an applicant;

h. Income level of applicant of applicant's family;

i. Type of expected employment outcome;

j. Source of referral for vocational rehabilitation services;

k. Employment history;

l. Current employment status;

m. Educational status; or

n. Current educational credential.

2. No applicant or group of applicants is excluded or found ineligible solely on the basis of the type of disability; and

3. The eligibility requirements are applied without regard to the particular service needs or anticipated cost of services required by an applicant or the income level of an applicant or applicant's family, or the type of expected employment outcome, or the source of referral for vocational rehabilitation services; and, or the applicant's employment history or current employment status, or the applicant's educational status or current educational credential; and

4. 3. No duration of residence requirement is imposed that excludes from services any individual who is present in the state. (34 CFR 361.42(c))

22VAC30-20-40. Eligibility requirements determination.

A. Basic requirements. The department's determination of an applicant's eligibility for vocational rehabilitation services shall be based only on the following requirements: (i) a determination by qualified personnel that the applicant has a physical or mental impairment; (ii) 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; (iii) a presumption, in accordance with subsection B of this section, that the applicant can benefit in terms of an employment outcome from the provision of vocational rehabilitation services; and (iv) a determination by a qualified vocational rehabilitation counselor employed by the department 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, interests, and informed choice.

B. Presumption of benefit. The department shall presume that an applicant who meets the basic eligibility requirements in clauses (i) and (ii) of subsection A of this section can benefit in terms of an employment outcome unless the department demonstrates, based on clear and convincing evidence, that the applicant is incapable of benefiting in terms of an employment from vocational rehabilitation services due to the severity of the applicant's disability.

C. Presumption of eligibility for Social Security beneficiaries. The department shall assure that if an applicant has appropriate evidence, such as an award letter, that establishes the applicant's eligibility for Social Security benefits under Title II or Title XVI of the Social Security Act, the department shall presume that the applicant (i) meets the eligibility requirements in clauses (i) and (ii) of subsection A of this section and (ii) is an individual with a significant disability as defined in 22VAC30-20-10.

1. The department shall presume that any applicant who demonstrates proof of being determined eligible for Social Security benefits under Title II or Title XVI of the Social Security Act (i) meets the basic eligibility requirement in clauses (i) and (ii) of subsection A of this section and (ii) is considered an individual with a significant disability as defined in 22VAC30-20-10.

2. If an applicant for vocational rehabilitation services asserts that he 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) but is unable to provide appropriate evidence, such as an award letter, to support this 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. This verification must be made within a reasonable period of time to enable 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 22VAC30-20-20.

D. 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 under Title II or Title XVI of the Social Security Act, must intend to achieve an employment outcome that is consistent with the individual's unique strengths, resources, priorities, concerns, abilities, capabilities, interests, and informed choice.

1. The department shall be 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.

2. The applicant's completion of the application process for vocational rehabilitation services shall be sufficient evidence of the individual's intent to achieve an employment outcome, and no additional demonstration on the part of the applicant is required for purposes of satisfying this section.

E. Interpretation of entitlement. Nothing in this section shall be construed to create an entitlement to any vocational rehabilitation service.

F. Review and assessment of data for eligibility determination. Except as provided in 22VAC30-20-60 subsection G of this section, the department shall base its determination of each of the basic eligibility requirements in subsection A of this section on:

1. A review and assessment of existing data, including counselor observations, education records, information provided by the individual or the individual's family, information used by the Social Security Administration particularly information used by education officials, and determinations made by officials of other agencies; and

2. 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 worksite assessments, any other support services that are necessary to determine whether an individual is eligible.

G. Trial work experience for individuals with significant disabilities. Prior to any determination that an individual with a disability is incapable of benefiting unable to benefit from vocational rehabilitation services in terms of an employment outcome because of the severity of that individual's disability, the department shall explore conduct an exploration of the individual's abilities, capabilities, and capacity to perform in a realistic work situation in accordance with 34 CFR 361.42 to determine whether or not there is clear and convincing evidence to support such a determination. The department shall develop a written plan to assess periodically the individual's abilities, capabilities, and capacity to perform in competitive integrated work situations through the use of trial work experiences, which must be provided in competitive integrated employment settings to the maximum extent possible, consistent with the informed choice and rehabilitation needs of the individual. The plan for trial work shall include:

1. Trial work experiences which may include:

a. Supported employment,

b. On-the-job training, and

c. Other experiences using realistic integrated work settings.

2. Appropriate supports to accommodate the needs of the individual during the trial work experiences that include:

a. Assistive technology devices and services, and

b. Personal assistance services.

3. Trial work experiences of sufficient variety and over a sufficient period of time for the department to determine there is:

a. Sufficient evidence to conclude that the individual can benefit from the provision of vocational rehabilitation services in terms of an employment outcome; or

b. Clear and convincing evidence that due to the severity of the individual's disability, the individual is incapable of benefitting from the provision of vocational rehabilitation services in terms of an employment outcome.

22VAC30-20-60. Extended evaluation for individuals with significant disabilities. (Repealed.)

A. 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 make an eligibility determination for vocational rehabilitation services, the department shall conduct an extended evaluation to make the determination that (i) there is sufficient evidence to conclude that the individual can benefit from the provision of vocational rehabilitation services in terms of an employment outcome or (ii) there is clear and convincing evidence that the individual is incapable of benefiting from vocational rehabilitation services in terms of an employment outcome due to the severity of the individual's disability.

B. During the extended evaluation period, which may not exceed 18 months, vocational rehabilitation services shall be provided in the most integrated setting possible, consistent with the informed choice and rehabilitation needs of the individual.

C. During the extended evaluation period, the department shall develop a written plan for providing services that are necessary to make the determinations in subsection A of this section. The department may provide during this period only those services that are necessary to make these two determinations. (34 CFR 361.42)

D. The department shall assess the individual's progress as frequently as necessary, but at least once every 90 days, during the extended evaluation period.

E. The department shall terminate extended evaluation services at any point during the 18-month extended evaluation period if the department determines that (i) there is sufficient evidence to conclude that the individual can benefit from vocational rehabilitation services in terms of an employment outcome or (ii) there is clear and convincing evidence that the individual is incapable of benefiting from vocational rehabilitation services in terms of an employment outcome.

22VAC30-20-70. Certification of eligibility.

A. For vocational rehabilitation services, before or at the same time the applicant is accepted for services, the department shall certify that the applicant has met the basic eligibility requirements as specified in 22VAC30-20-40.  

B. For extended evaluation, as a basis for providing an extended evaluation to determine vocational rehabilitation potential, there shall be certification that the applicant has met the requirements as specified in 22VAC30-20-60.

Before developing an individualized plan for employment as specified in 22VAC30-20-110, the department shall certify that the applicant has met the basic eligibility requirements as specified in subsection A of 22VAC30-20-40.

22VAC30-20-80. Procedures for ineligibility determination.

A. Certification of ineligibility. If the department determines that an applicant is ineligible for vocational rehabilitation services or determines that an individual receiving services under an individualized plan for employment is no longer eligible for services, the department shall:

1. Make the determination only after providing an opportunity for full consultation with the individual or, as appropriate, with the individual's representative;

2. Inform the individual in writing, supplemented as necessary by other appropriate modes of communication consistent with the informed choice of the individual, of the ineligibility determination, including the reasons for that determination, the requirements under this section and the means by which the individual may express and seek remedy for any dissatisfaction, including the procedures for review of a department personnel determination in accordance with 22VAC30-20-181;

3. Provide the individual with a description of services available under the Client Assistance Program and information on how to contact that program;

4. Refer the individual (i) to other training or employment-related programs that are part of the one-stop centers service delivery system that can address the individual's training or employment related needs or, (ii) if the ineligibility determination is based on a finding that the individual is incapable of achieving or has chosen not to pursue an employment outcome as defined in 22VAC30-20-10, to local extended employment providers; and federal, state, or local programs or service providers, including as appropriate, independent living programs and extended employment providers, best suited to meet the individual's rehabilitation needs; and

5. Review within 12 months and annually thereafter if requested by the individual or, if appropriate, by the individual's representative, any ineligibility determination that is based on a finding that the individual is incapable of achieving an employment outcome. The review need not be conducted in situations in which the individual has refused it, the individual is no longer present in the state Virginia, the individual's whereabouts are unknown, or the individual's medical condition is rapidly progressive or terminal.

B. Case closure without eligibility determination. The department shall not close an applicant's record of services prior to making an eligibility determination unless the applicant declines to participate in, or is unavailable to complete, an assessment for determining eligibility and priority for services, and the department has made a reasonable number of attempts to contact the applicant or, if appropriate, the applicant's representative to encourage the applicant's participation.

22VAC30-20-95. Information and referral services.

A. The department shall implement an information and referral system adequate to ensure that individuals with disabilities, including eligible individuals who do not meet the department's order of selection criteria for receiving vocational rehabilitation services if the department is operating under an order of selection, are provided accurate vocational rehabilitation information and guidance (which may include counseling and referral for job placement) using appropriate modes of communication to assist them in preparing for, securing, retaining, or regaining employment.

B. The department shall refer individuals with disabilities to other appropriate federal and state programs, including other components of the statewide workforce investment system. In making these referrals, the department shall:

1. Refer the individuals to federal or state programs, including programs carried out by other components of the statewide workforce investment development system, best suited to address the specific rehabilitation, independent living and employment needs of an individual with a disability who makes an informed choice not to pursue an employment outcome under the vocational rehabilitation program; and

2. Inform the individual that services under the vocational rehabilitation program can be provided to eligible individuals in extended employment if necessary for purposes of training or otherwise preparing for employment in an integrated setting;

3. Inform the individual that if he initially chooses not to pursue an employment outcome, he can seek services from the department at a later date if, at that time, he chooses to pursue an employment outcome;

4. Refer the  individual, as appropriate, to the Social Security Administration in order to obtain information concerning the ability of individuals with disabilities to work while receiving benefits from the Social Security Administration; and

5. Provide the individual who is being referred (i) a notice of the referral by the department to the agency carrying out the program; (ii) information identifying a specific point of contact within the agency to which the individual is being referred; and (iii) information and advice regarding the most suitable services to assist the individual to prepare for, secure, retain, or regain employment.

22VAC30-20-100. The individualized plan for employment procedures.

A. General requirements.

1. An individualized plan for employment meeting the requirements of this section shall be developed and implemented in a timely manner for For each individual determined to be eligible for vocational rehabilitation services or, if the department is operating under an order of selection in accordance with 22VAC30-20-90, for each eligible individual to whom the department is able to provide services. Services shall be provided in accordance with the provisions of the individualized plan for employment., an individualized plan for employment meeting the requirements of this section shall be developed and implemented in a timely manner, not to exceed 90 days after the individuals eligibility determination date. This 90-day deadline for developing the individualized plan for employment may be extended if the department and the eligible individual agree to an extension of the deadline to a specific date by which the plan shall be developed.

2. The individualized plan for employment must be designed to achieve a specific employment outcome as defined in 22VAC30-20-10.

3. The department shall conduct an assessment for determining vocational rehabilitation needs, if appropriate, for each eligible individual, or if the department is operating under an order of selection, the department shall conduct an assessment for each eligible individual to whom the department is able to provide services. The purpose of this assessment is to determine the employment outcome and the nature and scope of vocational rehabilitation services to be included in the individualized plan for employment.

a. To the extent possible, the employment outcome and the nature and scope of rehabilitation services to be included in the individualized plan for employment shall be determined based on data from assessment of eligibility and priority of services under 22VAC30-20-30.

b. If additional data are necessary to determine the employment outcome and the nature and scope of services, the department shall conduct a comprehensive assessment of the unique strengths, resources, priorities, concerns, abilities, capabilities, interests, and informed choice, including the need for supported employment services, of the eligible individual, in the most integrated setting possible. In preparing the comprehensive assessment, the department shall use, to the maximum extent possible and appropriate and in accordance with confidentiality requirements, existing information that is current as of the date of the development of the individualized plan for employment. This includes information (i) available from other programs and providers, particularly information used by the education system and the Social Security Administration; (ii) provided by the individual and the individual's family; and (iii) obtained under the assessment for determining the individual's eligibility and vocational needs.

3. 4. The individualized plan for employment shall be a written document prepared on forms provided by the department.

4. 5. Vocational rehabilitation services shall be provided in accordance with the provisions of the individualized plan for employment. An eligible individual or, as appropriate, the individual's representative may develop all or part of the individualized plan for employment with or without assistance from the department or other entity. The individualized plan for employment shall be approved and signed by the qualified vocational rehabilitation counselor employed by the department and the individual or, as appropriate, the individual's representative. The department shall establish and implement standards for the prompt development of individualized plans for employment for the individuals identified in subdivision 1 of this subsection, including timelines that take into consideration the needs of the individual.

5. 6. The department shall promptly provide each individual or, as appropriate, the individual's representative a written copy of the individualized plan for employment and its amendments in the native language or appropriate mode of communication of the individual or, as appropriate, the individual's representative.

6. 7. The department shall advise in writing each individual or, as appropriate, the individual's representative of all department procedures and requirements affecting the development and review of an individualized plan for employment, including the availability of appropriate modes of communication.

7. 8. The individualized plan for employment for a student with a disability who is receiving special education services must be coordinated with the developed in consideration of the student's individualized education program for that individual in terms of goals, objectives, and services identified in the individualized education program. or services under § 504 of the Act, as applicable, and the plans, policies, and procedures and terms of interagency agreement with the state agency and education officials designed to facilitate the transition of students with disabilities from the receipt of educational services to the receipt of vocational rehabilitation services.

9. The department shall provide individuals entitled to benefits under Title II or Title XVI of the Social Security Act information on additional supports and assistance for individuals with disabilities desiring to enter the workforce, including benefits planning.

B. Individualized plan for employment review. The department shall review the plan with the individual or, as appropriate, the individual's representative as often as necessary, but at least once each year to assess the individual's progress in achieving the identified employment outcome. The plan may be amended as necessary if there are substantive changes in the employment outcome, the vocational rehabilitation services to be provided, or the providers of the vocational rehabilitation services. Amendments to the plan do not take effect until agreed to and signed by the individual or, as appropriate, the individual's representative and by a qualified vocational rehabilitation counselor employed by the department.

22VAC30-20-110. Individualized plan for employment content.

A. Regardless of the option in 22VAC30-20-100 chosen by the eligible individual for developing the individualized plan for employment, each plan for employment shall include the following:

1. A description of the employment outcome, as defined in 22VAC30-20-10, that is chosen by the eligible individual and is consistent with the individual's unique strengths, resources, priorities, concerns, abilities, capabilities, career interests, and informed choice of the individual, and results in employment in an integrated setting; that is consistent with the general goal of competitive integrated employment;

2. A description of the vocational rehabilitation services provided under 22VAC30-20-120 that are needed to achieve the employment outcome, (i) including, as appropriate, the provision of assistive technology devices and services and personal assistance services, including training in the management of those services, and providing in the most integrated setting that is appropriate for the services involved and is consistent with the informed choice of the eligible individual; (ii) in the case of an eligible student or youth with a disability, the specific transition and support services needed to achieve the employment outcome or projected post-school employment outcome;

3. A provision for services to be provided in the most integrated setting that is appropriated for the services involved and consistent with the informed choice of the eligible individual;

3. 4. Timelines for the achievement of the employment outcome and for the initiation of services;

4. 5. A description of the entity or entities chosen by the eligible individual or, as appropriate, the individual's representative that will provide the vocational rehabilitation services and the methods used to procure those services;

5. 6. A description of the criteria that will be used to evaluate progress toward achievement of the employment outcome;

6. 7. The terms and conditions of the individualized plan for employment, including, as appropriate, information describing (i) the responsibilities of the department, (ii) the responsibilities the eligible individual shall assume in relation to achieving the employment outcome, (iii) the extent of the eligible individual's participation in paying for the cost of services, (iv) the responsibility of the individual with regard to applying for and securing comparable services and benefits as described in 22VAC30-20-170, and (v) the responsibilities of other entities as the result of arrangements made pursuant to the comparable services or benefits requirements in 22VAC30-20-170;

7. 8. A statement of the rights of the individual under this chapter and the means by which the individual may express and seek remedy for any dissatisfaction, including the opportunity for a review of determinations made by department personnel;

8. 9. A statement of the availability of the Client Assistance Program;

9. 10. The basis on which the individual has been determined to have achieved an employment outcome;

10. 11. A statement concerning the expected need for post-employment services prior to closing the record of services of an individual who has achieved an employment outcome;

11. 12. A description of the terms and conditions for the provision of any post-employment services; and

12. 13. If appropriate, a statement of how post-employment services shall be provided or arranged through other entities as the result of arrangements made pursuant to the comparable benefits and services requirement.

B. Supported employment. In addition to the requirements in subsection A of this section, the individualized plan for employment for an individual with a most significant disability for whom supported employment has been determined appropriate shall also:

1. Specify the supported employment services to be provided by the department;

2. Specify the expected extended services needed, which may include natural supports;

3. Identify the source of extended services or, to the extent that it is not possible to identify the source of extended services at the time the individualized plan for employment is developed, include a description of the basis for concluding that there is a reasonable expectation that those sources will become available;

4. Provide for periodic monitoring to ensure that the individual is making satisfactory progress toward meeting the weekly work requirement established in the individualized plan for employment by the time of transition to extended services;

5. Provide for the coordination of services provided under an individualized plan for employment with services provided under other individualized plans established under other federal or state programs;

6. To the extent that job skills training is provided, identify that the training shall be provided on site; and

7. Include placement in an integrated setting for the maximum number of hours possible based on the unique strengths, resources, priorities, concerns, abilities, capabilities, interests, and informed choice of individuals with the most significant disabilities.

C. Student with a disability. In addition to the requirements in subsection A of this section, the individualized plan for employment for a student with a disability shall be coordinated with the individualized education program or services under § 504 of the Act, as applicable for that individual, in terms of the goals, objectives, and services identified in the education program.

22VAC30-20-120. Scope of vocational rehabilitation services for individuals.

A. Pre-employment transition services. The department, in collaboration with the local education agencies involved, shall provide or arrange for the provision of pre-employment transition services for all students with disabilities as defined in 22VAC30-20-10 who are in need of such services regardless of whether the student has applied or been determined eligible for vocational rehabilitation service.

1. The department shall provide the following required pre-employment transition services:

a. Job exploration counseling;

b. Work-based learning experiences, which may include in-school or after school opportunities, or experience outside the traditional school setting (including internships), provided in an integrated environment to the maximum extent possible;

c. Counseling on opportunities for enrollment in comprehensive transition or postsecondary educational programs at institutions of higher education;

d. Workplace readiness training to develop social skills and independent living; and

e. Instruction in self-advocacy (including instruction in person-centered planning), which may include peer mentoring (including peer mentoring from individuals with disabilities working in competitive integrated employment).

2. The department may provide the following authorized pre-employment transition services if funds are available and remaining after the provision of the required activities described in subdivision 1 of this subsection:

a. Implement effective strategies to increase the likelihood of independent living and inclusion in communities and competitive integrated workplaces;

b. Develop and improve strategies for individuals with intellectual disabilities and individuals with significant disabilities to (i) live independently, (ii) participate in postsecondary education experiences, and (iii) obtain, advance in, and retain competitive integrated employment;

c. Provide instruction to vocational rehabilitation counselors, school transition personnel, and other persons supporting students with disabilities;

d. Disseminate information about innovative, effective, and efficient approached to achieve the goals of this subsection;

e. Coordinate activities with transition services provided by local education agencies under the IDEA;

f. Apply evidence-based findings to improve policy, procedure, practice, and the preparation of personnel in order to better achieve the goals of this section;

g. Develop model transition demonstration projects;

h. Establish or support multistate or regional partnerships involving states, local educational agencies, designated state units, developmental disability agencies, private businesses, or other participants to achieve the goals of this section; and

i. Disseminate information and strategies to improve the transition to postsecondary activities of individuals who are members of traditionally unserved and underserved populations.

3. Each local office of the department shall carry out the responsibilities of:

a. Attending individualized education program meetings for students with disabilities when invited;

b. Working with the local workforce development boards, one-stop centers, and employers to develop work opportunities for students with disabilities, including internships, summer employment, other employment opportunities available throughout the school year, and apprenticeships;

c. Working with schools, including those carrying out activities under § 614(d) of IDEA, to coordinate and ensure the provision of pre-employment transition services under this section; and

d. When invited, attending person-centered planning meetings for individuals receiving services under Title XIX of the Social Security Act.

B. Services for individuals who have applied for or been determined eligible for vocational rehabilitation services. As appropriate to the vocational rehabilitation needs of each individual and consistent with each individual's informed choice individualized plan for employment, the department shall ensure that the following vocational rehabilitation services are available to assist the individual with a disability in preparing for, securing, retaining, advancing in, or regaining an employment outcome that is consistent with the individual's strengths, resources, priorities, concerns, abilities, capabilities, interests, and informed choice:

1. Assessment for determining eligibility and priority for services and assessment for determining vocational rehabilitation needs by qualified personnel including, if appropriate, an assessment by personnel skilled in rehabilitation technology in accordance with 22VAC30-20-10.

2. Vocational rehabilitation counseling and guidance, including information and support services to assist an individual in exercising informed choice.

3. Referral and other services necessary to assist applicants and eligible individuals to secure needed services from other agencies, including other components of the statewide workforce investment development system and to advise those individuals about the Client Assistance Program.

4. Physical and mental restoration services, in accordance with the definition of in 22VAC30-20-10, to the extent that financial support is not readily available from a source other than the department (such as through health insurance or comparable services and benefits as defined in 22VAC30-20-10).

a. Eligibility requirements.

(1) Stable or slowly progressive. The physical or mental condition shall be stable or slowly progressive. The condition shall not be acute or transitory, or of such recent origin that the resulting functional limitations and the extent to which the limitations affect occupational performance cannot be identified.

(2) Refusal of service. When an individual has a physical or mental disability with resulting limitations that constitute a barrier to employment, and when in the opinion of licensed medical personnel these limitations can be removed by physical or mental restoration services without injury to the individual, the individual shall not be eligible for any rehabilitation services, except counseling, guidance and placement if he refuses to accept the appropriate physical or mental restoration services. A second opinion may be provided at the individual's request. In the event of conflicting medical opinions, the department shall secure a third opinion and the decision shall be made on the two concurring opinions.

b. Provision of physical and mental restoration services. These services shall be provided only when:

(1) Recommended by a licensed practitioner;

(2) Services are not available from another source; and

(3) They are provided in conjunction with counseling and guidance, and other services, as deemed appropriate.

The department shall not make case expenditures for acute or intermediate medical care except for medical complications and emergencies that are associated with or arise out of the provision of vocational rehabilitation services under an individualized plan for employment and that are inherent in the condition under treatment.

c. Services not sponsored by the department. The department, in consultation with appropriate medical resources, shall determine those restoration services that shall be provided by the department. The following procedures shall not be provided:

(1) Experimental procedures;

(2) High risk procedures;

(3) Procedures with limited vocational outcomes or procedures not related to the vocational outcome; and

(4) Procedures with uncertain outcomes.

5. Vocational and other training services, including personal and vocational adjustment training, advanced training in, but not limited to, a field of science, technology engineering, mathematics (including computer science), medicine, law, or business; books, tools, and other training materials, except that no training or training services in institutions of higher education (universities, colleges, community or junior colleges, vocational schools, technical institutes, or hospital schools of nursing) nursing, or any other postsecondary education institution) may be paid for with funds under this section unless maximum efforts have been made by the department and the individual to secure grant assistance in whole or in part from other sources to pay for that training.

All training services provided shall be related to attainment of the vocational objective or provide for the determination of eligibility for vocational rehabilitation services. Vocational training includes any organized form of instruction that provides the knowledge and skills essential for performing the tasks involved in an occupation. Vocational training may be obtained in institutions such as colleges, universities, business schools, nursing schools, and trade and technical schools. It may also be obtained by on-the-job training, apprenticeship programs, tutorial training, or correspondence study.

a. Approved training institutions. Only training institutions approved in accordance with the department's vendor approval process shall be used.

b. College and university academic training.

(1) Academic requirements. The individual shall take sufficient academic credit hours based on the requirement of the college attended for classification as a full-time student, unless this is, in the opinion of the department, contraindicated by the individual's disability. Courses shall meet the institution's requirement towards toward the obtainment of the degree or certificate. Continuation of financial assistance by the department shall be dependent upon the individual maintaining the grade average required by the institution for the particular course of study. When the institution has no grade requirement, continuation of financial assistance by the department shall be dependent upon the individual maintaining a "C" average calculated over the academic year. When the individual fails to maintain the required academic grade average, assistance may be discontinued. The department's assistance may be reinstated when the individual completes one semester or quarter with the minimum required grade average.

Each individual shall be advised that failure to provide grades to the department shall be grounds for termination of departmental financial assistance.

(2) Graduate degree program. The department shall assist eligible individuals in securing a graduate degree only when it is judged essential to achieving an employment goal agreed to by the department and the individual.

(3) Virginia colleges and universities. Vocational training, including college or university training, shall be provided by the department in department-approved institutions located within the boundaries of the Commonwealth, unless such training is not available within the Commonwealth. Institutions in the areas of Washington, D.C.; Bristol-Johnson City-Kingsport, Tennessee; the city of Bluefield, West Virginia; and other cities where the services may be provided more effectively and economically and shall be treated as if located in Virginia.

(4) Tuition and mandatory fees. The department may pay tuition for college and university training in an amount not in excess of the highest amount charged for tuition by a state-supported institution or the rate published in the catalog, whichever is less, except where out-of-state or private college is necessary. Published tuition costs in excess of the highest amount charged by a state-supported institution may be necessary and may be paid by the department if no state-supported institution is available that offers the degree program needed to achieve the established employment goal, if no state-supported program offers disability-related supports to enable the individual to achieve the established employment goal, or if an out-of-state or private program is more economical for the department.

(5) Scholarships and grants. Training services in institutions of higher education shall be paid for with departmental funds only after maximum efforts have been made by the individual to secure assistance in whole or in part from other sources; however, any individual eligible for vocational rehabilitation training services but not meeting the financial need test of the department may be provided an assistance grant annually in an amount not to exceed the equivalent of one quarter's tuition of a full-time community college student.

c. Correspondence study. The correspondence study training may be authorized only when:

(1) The individual requires specific preliminary training in order to enter a training program or training cannot be arranged by any other method; and

(2) Satisfactory progress is maintained.

d. On-the-job training. The department may enter into agreements with employers in the private or public sector to provide on-the-job training services. The terms and conditions of each individual agreement shall be established by the department.

e. Part-time training. Part-time training may be utilized only when the severity of the individual's disability shall not allow the individual to pursue training on a full-time basis. Part-time training shall be authorized only at department-approved facilities and schools.

f. Work adjustment training. Work adjustment training may be provided if needed for the individual to engage in subsequent vocational rehabilitation services as indicated by the thorough diagnostic study assessment of medical, vocational, psychological, and other factors. This service may be provided only by the department or approved vendors.

g. Prevocational training. Prevocational training may be provided if needed for the individual to engage in subsequent vocational rehabilitation services as indicated by the thorough diagnostic study assessment of medical, vocational, psychological, and other factors. This service may be provided only by the department or approved vendors.

h. Tutorial training. Tutorial training may be provided if needed for the individual to achieve a vocational goal as indicated by the thorough diagnostic study assessment of medical, vocational, psychological, and other factors. This service may be provided only by the department or approved vendors.

i. Other higher education training concerns.

(1) Required textbooks and supplies. The maximum amount of departmental financial assistance for required textbooks and supplies (pencils, paper, etc.) shall not exceed the amount determined by the institution for books and supplies in the student's school budget.

(2) Required training materials. Training materials may be provided when required by the instructor.

6. Maintenance in accordance with the definition of that term in 22VAC30-20-10.

a. Clothes. Clothes shall be provided when specifically required for participation in a training program or for placement in a specialized job area as determined by the department.

b. Room, board, and utilities. The maximum rate paid for room, board, and utilities shall be established annually by the department.

(1) Training cases. The maximum amount of departmental financial assistance for room and board at a training institution (college, vocational school, rehabilitation center facility), when the institution is able to provide room and board, shall not exceed the published room and board rates charged by the institution, or the actual cost, whichever is less.

(2) While living at home. Maintenance shall be provided for an individual living at home only when the individual's income supports the family unit of the individual, when it is more cost effective for the department, or when it is in the best interest of the individual's vocational rehabilitation program based on mutual agreement of the rehabilitation counselor and the individual.

7. Transportation in connection with the rendering of any vocational rehabilitation service and in accordance with the definition of that term in 22VAC30-20-10. Transportation may include relocation and moving expenses necessary for achieving a vocational rehabilitation objective.

a. Transportation costs. The department shall pay the most economical rate for accessible public transportation. When public transportation is not available, or the individual, because of disability, cannot travel by public transportation, transportation may be provided at a rate established by the department.

b. For and during training services. When the individual must live at the training location, the department may only pay for a one-way trip from the residence to the training location at the beginning of the training and a one-way trip from the training location to the residence or job site at the conclusion of the training program. Transportation may be paid to and from the residence in case of emergency (severe illness or death in family;, acute business emergency, or prolonged school closing such as Christmas holidays). Local bus fare also may be provided. When the individual's physical condition is such that travel by public conveyance is impossible, taxi fare may be allowed from place of residence to training site and return. When the individual lives at home and the training site requires daily transportation, the cost of such transportation may be paid.

8. Vocational rehabilitation services to family members of an applicant or eligible individual if necessary to enable the applicant or eligible individual to achieve an employment outcome. Services to family members of the individual may be provided when such services may be expected to contribute substantially to the determination of vocational rehabilitation potential or to the rehabilitation of the individual. In order for the department to furnish these services, they shall not be available from any other source.

a. Family member is defined in 22VAC30-20-10.

b. Day care services for dependent children. The department may pay up to the amount paid per child, per day, by the local social services department in the locality in which the child is located. When more than one child is involved, rates for the additional children may be lower. When satisfactory accommodations can be secured at a rate lower than that paid by the local social services department, the lower rate shall be paid by the department.

9. Interpreter services, including sign language and oral interpreter services for individuals who are deaf or hard of hearing; tactile interpreting services for individuals who are deaf-blind provided by qualified personnel; and reader services, rehabilitation teaching services, and orientation and mobility services for individuals who are blind.

a. Upon request of the individual or as needed, these services may be provided at any stage during the rehabilitation process. Interpreting may be primarily in the form of sign language (manual method) or oral interpretation (oral method).

b. The department shall pay for interpreting services when these services contribute to the individual's vocational rehabilitation program.

c. The interpreter shall hold at least one of the credentials approved by the Virginia Department for the Deaf and Hard-of-Hearing pursuant to § 51.5-113 of the Code of Virginia.

d. When individuals with deafness are in a training program, the department shall arrange for note taking or reader services, unless the individual indicates such service is not needed or desired.

10. Rehabilitation technology, in accordance with the definition of that term in 22VAC30-20-10, including vehicular modification, telecommunications, sensory, and other technological aids and devices.

a. Telecommunications system. Services related to use of a telecommunications system shall meet established federal or state health and safety standards and be consistent with written state policies.

b. Sensory and other technological aids and devices. The department may provide electronic or mechanical pieces of equipment or hardware intended to improve or substitute for one or more of the human senses, or for impaired mobility, or motor coordination.

Services related to use of sensory and other technological aids and devices shall meet established federal or state health and safety standards and be consistent with state law and regulations.

(1) An otological evaluation may be required, and an audiological examination shall be required before the department may purchase a hearing aid.

(2) The department shall purchase hearing aids only for those individuals identified as benefiting in terms of employability as a direct result of such aid.

11. Technical assistance and other consultation services to conduct market analyses, develop business plans, and otherwise provide resources, to the extent those resources are authorized to be provided through the statewide workforce investment development system, to eligible individuals who are pursuing self-employment or telecommuting or establishing a small business operation as an employment outcome.

12. Job related services, including job search and placement assistance and, job retention services, follow-up services, and follow-along services. Placement shall be in accordance with the mutually agreed upon vocational objective and is the responsibility of both the individual and the department.

13. Post-employment services, in accordance with the definition of that term in 22VAC30-20-10.

a. Selection criteria. All individuals whose vocational rehabilitation cases have been closed as achieving an employment outcome may be considered for post-employment services. The department may evaluate with each individual the need for such services.

b. All of the following criteria shall be met for an individual to receive post-employment services:

(1) The individual shall have been determined to have achieved an employment outcome;

(2) The disabling medical condition shall be stable or slowly progressive;

(3) Post-employment services shall be necessary to assist the individual in maintaining employment; and

(4) The problem interfering with the individual maintaining employment does not require a complex or comprehensive rehabilitation effort, that is, a new and distinct disabling condition has not occurred that requires a new application.

If needed services exceed any of the conditions in subdivisions 13 b (1) through 13 b (4) of this section subsection, the department may take a new application.

14. Supported employment services, as defined in 22VAC30-20-10.

a. An individual with a most significant disability, including a youth with a most significant disability, shall be eligible for supported employment services if he meets all of the following criteria:

(1) Has not worked, or has worked only intermittently, in competitive employment;

(2) Has been determined on the basis of any evaluation of rehabilitation and career needs, including a consideration of whether supported employment is a possible vocational outcome, to meet the eligibility criteria established in 22VAC30-20-40; and

(3) Has a need for ongoing support services in order to perform competitive work.

(1) Competitive integrated employment has not historically occurred; or

(2) Competitive integrated employment has been interrupted or intermittent as a result of a significant disability; and

(3) The nature and severity of the disability results in the need for intensive supported employment services and extended services after the transition from support provided by the department in order to perform the work.

b. The following activities shall be authorized under the supported employment program:

(1) Evaluation of rehabilitation and career needs of individuals with the most significant disabilities in terms of a supported employment outcome;

(2) Development of and placement in jobs for individuals with the most significant disabilities; and

(3) Provision of time-limited services needed to support individuals with the most significant disabilities in employment, including:

(a) Intensive on-the-job skills training provided by skilled job trainers, coworkers, and other qualified individuals;

(b) Ongoing support services needed to support and maintain an individual's supported employment placement that shall include, at a minimum, twice monthly monitoring to assess the individual's employment stability;

(c) Extended services designed to reinforce and stabilize the job placement; and

(d) Customized employment as appropriate; and

(e) Discrete post-employment services unavailable from the extended services provider that are necessary to maintain or regain the job placement or advance in employment, including but not limited to job station redesign, repair and maintenance of assistive technology, and replacement of prosthetic and orthotic devices.

c. Transitional employment services for individuals with chronic mental illness may be provided under the supported employment program. Transitional employment means a series of temporary job placements in competitive work in an integrated work setting with ongoing support services. Ongoing support services shall include continuing sequential job placements until job permanency is achieved.

d. c. The department shall provide for the transition of an individual with the most significant disabilities to extended services no later than 18 24 months after placement in supported employment, unless a longer period to achieve job stabilization has been established in the individualized plan for employment before an individual with a most significant disability makes the transition to extended services as defined in 22VAC30-20-10. is needed to achieve the employment outcome in the individualized plan for employment and the eligible individual and the department jointly agree to extend the time.

d. The department may provide extended services as defined in 22VAC30-20-10 to a youth with the most significant disability for a period of time not to exceed four years, or until such time that a youth reaches the age of 25 years and no longer meets the definition of youth with a disability under 22VAC30-20-10.

15. Occupational licenses, tools, equipment, initial stocks (including livestock), and supplies.

a. Licenses. Licenses required for entrance into selected vocations may be provided. These may be occupational or business licenses as required by the local governing body, state board examinations required by the Department of Professional and Occupational Regulation, and motor vehicle operator's license.

b. Tools and equipment. Tools and equipment shall be provided for an individual when:

(1) They are required for a job or occupation that is best suited to the utilization of the individual's abilities and skills;

(2) The employer does not ordinarily furnish these articles; and

(3) They are for the exclusive use of the individual.

Such articles shall be for the individual's own use in the performance of his work and must remain in his possession and under his control as long as he engages in the job or occupation for which they are provided.

If the individual alleges that tools and equipment are stolen, the individual shall file a stolen property report with the local police.

Computer equipment and software shall be provided if required as indicated in subdivisions 15 b (1), 15 b (2), and 15 b (3) of this section subsection, or if it is necessary for vocational training.

c. Title retention and release. The department shall comply with state laws and regulations on the retention of title and release of title of equipment to individuals.

d. Repossession of tools and equipment. The department shall repossess all occupational tools and equipment to which the department retains title when they are no longer being used for the purposes intended by the individual for whom they were purchased.

16. Transition services, in accordance with the definition of that term in 22VAC30-20-10. for students and youth with disabilities that facilitate the transition from school to postsecondary life, such as achievement of an employment outcome in competitive integrated employment or pre-employment transition services for students.

17. Personal assistance services, in accordance with the definition of that term in 22VAC30-20-10.

18. Other goods and services determined necessary for the individual with a disability to achieve an employment outcome. These include, but are not limited to, such services as peer counseling, independent living skills training, attendant care, and attendant training. The department shall not purchase or participate in the purchase of automotive vehicles.

19. Customized employment in accordance with the definition of that term in 22VAC30-20-10.

19. 20. Services to groups. The department may provide vocational rehabilitation services to groups of individuals with disabilities when the services may contribute substantially to the needs of the group; although the services are not related directly to the individualized employment plan of any one person with a disability.

22VAC30-20-130. Individuals determined to have achieved an employment outcome.

An individual is determined to have achieved an employment outcome and the record of service may be closed only if all of the following requirements are met:

1. The provision of services under the individual's individualized plan for employment has contributed to the achievement of an employment outcome;

2. The employment outcome is consistent with the employment outcome described in the individualized plan for employment and with the individual's unique strengths, resources, priorities, concerns, abilities, capabilities, interests, and informed choice;

3. The employment outcome is in an a competitive integrated setting;

4. The individual has maintained the employment outcome for a period of at least 90 days; and

5. At the end of the applicable period under this section, the individual and the rehabilitation counselor or coordinator consider the employment outcome to be satisfactory and agree that the individual is performing well on the job; and

6. The individual is informed through the appropriate modes of communication of the availability of post-employment services.

22VAC30-20-150. Written standards for facilities and providers of services.

The department shall establish, maintain, make available to the public, and implement written minimum standards for the various types of facilities and providers of services used by the department in providing vocational rehabilitation services, in accordance with the following requirements:

1. Accessibility of facilities. Any facility in which vocational rehabilitation services are provided must be accessible to individuals receiving services and must comply with the requirements of the Architectural Barriers Act of 1968, the Americans with Disabilities Act of 1990, and § 504 of the Act, as amended, and regulations implementing these laws.

2. Personnel standards.

a. Qualified personnel. Providers of vocational rehabilitation services shall use qualified personnel, in accordance with any applicable national or state approved or recognized certification, licensing, or registration requirements or, in the absence of these requirements, other comparable requirements (including state personnel requirements) that apply to the profession or discipline in which that category of personnel is providing vocational rehabilitation services.

b. Affirmative action. Providers of vocational rehabilitation services shall take affirmative action to employ and advance in employment qualified individuals with disabilities covered under and on the same terms and conditions as in § 503 of the Act.

c. Special communication needs personnel. Providers of vocational rehabilitation services shall include among their personnel, or obtain the services of, individuals able to communicate in the native languages of applicants and eligible individuals who have limited English speaking ability; and ensure that appropriate modes of communication for all applicants and eligible individuals are used.

3. Fraud, waste, and abuse. Providers of vocational rehabilitation services shall have adequate and appropriate policies and procedures to prevent fraud, waste, and abuse.

22VAC30-20-170. Availability of comparable services and benefits.

A. Prior to providing any vocational rehabilitation services to an eligible individual or to members of the individual's family, except those services listed in subsection D of this section, the department shall determine whether comparable services and benefits as defined in 22VAC30-20-10 exist under any other program and whether those services and benefits are available to the individual.

B. If comparable services or benefits exist under any other program and are available to the eligible individual at the time needed to achieve the rehabilitation objectives in the individual's individualized plan for employment, the department shall use those comparable services or benefits to meet, in whole or in part, the cost of vocational rehabilitation services.

C. If comparable services or benefits exist under any other program but are not available to the individual at the time needed to ensure the progress of the individual toward achieving the employment outcome in the individual's individualized plan for employment, the department shall provide vocational rehabilitation services until those comparable services and benefits become available.

D. The following services shall be exempt from a determination of the availability of comparable services and benefits under subsection A of this section: assessment for determining eligibility and priority for services; assessment for determining vocational rehabilitation needs; vocational rehabilitation counseling, guidance, and referral services; job-related services, including job search and placement services; job retention services; follow-up services; rehabilitation technology; and post-employment services consisting of those services listed in this subsection.

E. The requirements of subsection A of this section also shall not apply if the determination of the availability of comparable services and benefits under any other program would interrupt or delay (i) the progress of the individual toward achieving the employment outcome identified in the individualized plan for employment; (ii) an immediate job placement; or (iii) 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; or an immediate job placement would be lost due to a delay in the provision of comparable services and benefits.

22VAC30-20-181. Review of determinations made by the department.

A. An applicant, an eligible individual, a recipient of services, or, if appropriate, an individual's representative who is dissatisfied with any determination made by department personnel that affects the provision of vocational rehabilitation services may request a timely review of the determination.

B. Informal dispute resolution.

1. A request for review shall be made within 60 days after the determination. The applicant, eligible individual, or, if appropriate, the individual's representative may request a meeting with the supervisor of the staff member who made the determination and request an informal administrative review conducted by the supervisor. Recipients of services who are not receiving vocational rehabilitation services may be offered access to the informal dispute resolution process at the discretion of the supervisor.

2. Within 10 working days of the request, the supervisor shall send a written decision and grounds to the applicant or eligible individual, with a copy to the individual's representative, if applicable, and it shall become part of the case record.

3. The informal dispute resolution process shall not be used to deny or delay the right to proceed directly to a hearing conducted and concluded within the time period established under subdivision D 1 of this section.

C. Mediation.

1. The department shall provide a mediation process conducted by a qualified and impartial mediator as defined in 22VAC30-20-10, who shall be selected from a list of qualified and impartial mediators maintained by the department. Mediation shall be requested within 60 days after a determination or informal administrative review decision. The department shall include in the mediation process the guardian of an applicant or, eligible individual, or recipient of services who has been judged incompetent. Participation in the mediation process is voluntary on the part of the applicant or eligible individual and on the part of the department. Mediation may be requested while a hearing is pending but shall not be used to deny or delay the applicant or eligible individual's right to a hearing conducted and concluded within the time period established under subdivision D 1 of this section.

2. The mediator shall schedule and conduct the mediation sessions in a timely manner and in a location convenient to the parties in dispute. The mediator shall afford both parties an opportunity to be represented by counsel or other advocate and to submit evidence or other information. Discussions that occur during mediation remain confidential and shall not be used as evidence in any subsequent hearing or civil proceeding, and parties shall be required to sign a confidentiality pledge prior to mediation. Either party or the mediator may terminate mediation at any time, and the applicant, eligible individual, or the department may seek resolution through a hearing.

3. Any agreement reached by the parties in a mediation shall be described in a written mediation agreement. Both parties to the dispute shall have an opportunity to review the agreement with their representative, supervisor, or legal advisor before signing it. An agreement signed by both parties shall become part of the case record, with a copy given to the applicant or eligible individual and any representative.

4. The cost of the mediation process shall be paid by the department, but the department is not required to pay for any costs related to the representation of an applicant or eligible individual.

D. Due Impartial due process hearing.

1. The applicant, eligible individual, recipient of services, or, if appropriate, individual's representative may request a hearing within 60 days after the determination to be reviewed, meeting or informal administrative review decision under subsection B of this section, or mediation refusal or mediation termination date. Department personnel may request a hearing within 60 days after termination of the mediation process under subsection C of this section.

a. The hearing shall be scheduled and conducted by a qualified and impartial hearing officer as defined and selected according to subdivision 2 of this subsection.

b. The hearing officer shall conduct the hearing within 60 days of the department receiving an individual's request, unless informal resolution is achieved before the 60th day, or the parties agree to a specific extension of time, or the hearing officer grants a postponement request for good cause that would result in a fair representation of the issues.

c. The hearing officer shall provide both parties to the dispute an opportunity to present evidence, information, and witnesses; to be represented by counsel or other appropriate advocate; and to examine all witnesses, information, and evidence. All testimony shall be given under oath. Hearsay testimony and redundant evidence may be admitted at the discretion of the hearing officer. Because the hearing officer cannot issue subpoenas, the department shall be responsible for the appearance of current department personnel on the witness list of either party.

d. Within 30 days after the hearing, the hearing officer shall issue a written decision with a full report of the findings and grounds for the decision to the applicant, eligible individual, individual's representative, and the department. The decision shall be based on the provisions of the approved state plan, the Act, federal vocational rehabilitation regulations, and state regulations and policies that are consistent with federal requirements. The hearing officer's decision shall be final, except that a party may request an impartial administrative review if the state has established procedures for review, and a party may bring a civil action under subsection G of this section.

2. The hearing officer for a particular case shall be selected randomly by the department from among the pool of persons qualified to be an impartial hearing officer, as defined in 34 CFR 361.5(b)(22) and 29 USC § 722(b) and (d), who are identified jointly by the commissioner and those members of the State Rehabilitation Council designated in § 102(d)(2)(C) of the Act (29 USC § 722(b) and (d)).

E. Administrative review of hearing officer decision.

1. If the state has established procedures for an administrative review, the request and statutory, regulatory, or policy grounds for the request shall be made in writing to the department within 20 days of the hearing decision date mailing of the impartial hearing officer's decision. The review shall be a paper review of the entire hearing record and shall be conducted by a designee of the Governor's office who shall not delegate the review to any personnel of the department.

2. The reviewing official shall provide both parties an opportunity to submit additional written evidence and information relevant to the final decision concerning the matter under review. The reviewing official may not overturn or modify the hearing officer's decision, or any part of that decision, that supports the position of the applicant or eligible individual, unless the reviewing official concludes, based on clear and convincing evidence, that the hearing officer's decision is clearly erroneous on the basis of being contrary to the approved state plan, the Act, federal vocational rehabilitation regulations, and state regulations and policies that are consistent with federal requirements.

3. Within 30 days after the request, the reviewing official shall issue an independent decision and full report of the findings and the statutory, regulatory, or policy grounds for the decision to the applicant, eligible individual, individual's representative, and department. The decision of the reviewing official is final and shall be implemented pending review by the court if either party chooses under subsection G of this section to bring a civil action regarding the matter in dispute.

F. Informing affected individuals. The department shall inform, through appropriate modes of communication, all applicants and eligible individuals of their right to request a review of a determination made by department personnel that affects provision of vocational rehabilitation services, including the names and addresses of individuals with whom mediation and hearing requests may be filed and how the mediator and hearing officer shall be selected; their right to proceed directly to a hearing; their right to an informal administrative review; their right to pursue mediation; and their right to contact the Client Assistance Program to assist during mediation and hearing processes. Notification shall be provided in writing at the time of application for vocational rehabilitation services; assignment to a priority category if the department is operating under an order of selection; individualized plan for employment development; and reduction, suspension, or termination of services.

G. Civil action. Any party who disagrees with the findings or decision of an impartial hearing officer under subsection D of this section or an administrative review under subsection E of this section shall have the right to bring a civil action with respect to the matter in dispute. The action may be brought in any state court of competent jurisdiction or in a district court of the United States of competent jurisdiction without regard to the amount in controversy. In any action brought under this subsection, the court receives the records related to the impartial due process hearing and the records related to the administrative review, if applicable; hears additional evidence at the request of a party; and basing its decision on the preponderance of the evidence, grants the relief that the court determines to be appropriate.

22VAC30-20-190. Protection, use, and release of personal information.

A. Purpose. The purpose is to establish policies and procedures to protect current and stored personal information and for the proper dissemination of this information in accordance with the statutes of the Code of Virginia, Virginia Freedom of Information Act, and Virginia Privacy Protection Act, and the Workforce Innovation and Opportunity Act. Hereafter clients Clients shall be referred to as data subjects in this section.

B. Application. This applies to all employees of the department, consultants, affiliates and volunteers.

C. Policies. The department shall:

1. Comply with state statutes when releasing any information regarding data subjects by:

a. Disclosing information or records to the data subject who is 18 years old, except:

(1) If data subject has been legally declared as incompetent then the right to access information has been granted to the individual or committee which has been appointed as guardian, authorized agent or agents, or representative or representatives.

(2) When the treating physician has written on a mental or medical record: "In my opinion a review of such records by the data subject would be injurious to the data subject's physical or mental health or well being." This does not preclude access to that report by authorized agents or representatives. The treating physician is the only professional who, by statute, has the authority to label and deny access to a mental record by the data subject. Access to other information is not restricted.

b. Disclosing information or records only to the parent or guardian for the data subject who is under 18 years old.;

2. Follow procedures which ensure that all records and other personal, identifying data are treated as confidential information, meaning that other than regular access authority and the exceptions which are permitted by code and statutes, no expressed personal or documented information shall be released to a third party without the written, informed consent of the data subject or his authorized agent or by court order;

3. Obtain and document only that information which is necessary to plan and deliver rehabilitation services;

4. Maintain and post the department's access list which designates staff positions of those who have the privilege of reviewing and checking out records;

5. Assign to all individuals as defined in subsection B of this section and acknowledge written requests for information which are identified and occur after a data subject's application for services;

6. Charge for copies of information unless the request is from those who need information to assist data subject in the rehabilitation program. The rate shall be $.15 per page or the actual cost, whichever is less; and

7. Keep records in offices unless in accordance with a court order, statute, or by special authorization from the department representative.

D. Procedures for disclosing information.

1. Handling disclosures.

a. Each request to disclose information shall be handled during normal business hours.

b. Each written request shall be responded to within 14 working days.

c. Before an employee releases information to a person or organization other than those identified on the access list, written, informed consent must be given by data subject or the authorized agent.

When there is need to release information regarding data subjects, informed consent forms should be initiated through the data subject's counselor. Forms are completed prior to releasing information and filed in data subject's record.

d. Any employee who releases information after informed consent is obtained must document data subject's record with employee's name, date, the purpose for giving specific information, and to whom information was given. These statements are also documented when the record has been reviewed by or copied for the data subject.

2. Accessing information for specific situations.

a. A data subject's request to review personal record.

(1) When a data subject requests a review of their his case records, the individual should be referred to their counselor, or in his absence, the counselor's supervisor. This employee is responsible for confirming the data subject's age, and competency status to access information in his own behalf.

(2) For those data subjects who are under younger than age 18 years or who have been declared incompetent, the department shall explain right to access and assist data subject by coordinating the desired review with parent or authorized agent.

(3) For data subjects who have the right to access information, the department should obtain the case record and review contents to learn if there are any mental records which a treating physician has identified as not to be reviewed. These are the only reports which can and must be removed before access.

(4) The department gives data subject their case record and is available throughout the review to interpret reports or to assist the data subject, who may wish to seek additional information regarding contents. The data subject may choose to review their case record without interpretation.

b. Access by parents, guardians, or authorized agents.

(1) When a data subject is a minor or has been legally declared as incompetent, the parent, guardian, or authorized agent, is expected to furnish personal identification and sign a statement regarding their relationship to data subject.

(2) When a data subject is 18 years or older and there is a parent who wants to review information or accompany data subject to a data subject oriented meeting, the data subject shall sign an "Authorization for Release of Information," form prior to disclosure.

c. Access by "significant others" (other family members or friends).

(1) When a data subject is a minor or has been legally declared as incompetent, the parent, guardian, or authorized agent, shall give written, informed consent prior to disclosure.

(2) When a data subject is 18 years or older, he shall give written, informed consent prior to disclosure.

d. Access by third parties.

(1) Unless required by law, or this the department, no disclosure shall be made to third parties without written, informed consent from the data subject or the legally authorized agent. Upon disclosure, third parties shall be advised to maintain confidentiality with no redisclosure of information.

(2) The following information is either required by law or permitted by mission of the agency and shall be disclosed without the data subject's authorization:

(a) Within the department, employees shall be given information which is relevant to case management or research requirements.

(b) The department's medical consultants may release information to another physician for consultation or hospitalization purposes.

(c) For emergencies:

(1) (i) Telephone and face-to-face disclosure may be made to any person for an emergency when it is reasonable to believe that a delay shall result in serious bodily injury, death or deterioration of the physical or mental condition of data subject. Examples: (i) an emergency admission or commitment to a hospital; (ii) an inquiry from an acute care hospital, data is limited to answers for specific information from the data subject's case record; and (iii) an inquiry by law-enforcement officials regarding an emergency situation. Information is limited to that which is necessary to deal with the emergency.

(2) (ii) When it becomes necessary to release information in these circumstances, the responsible department party shall enter the following in the data subject's case record: (i) the date the information was released; (ii) the person to whom information was released; (iii) the reason the information was released; (iv) the reason written, informed consent could not be obtained; and (v) the specific information which was released.

(d) For court orders and subpoena, all requests for information by court orders shall be processed by the data subject's counselor unless there is some question about the need for legal advice. In those situations, the department representative shall decide if contact needs to be made with the department representative in the Attorney General's office prior to compliance. This contact shall be made by the commissioner's designee.

(e) The Virginia Department of Social Services shall be given, upon request, information about the location, income, and property of data subjects who have abandoned, deserted, or failed to support children and their caretakers who are receiving public assistance. No other information may be released.

(f) The Virginia Department of Health shall be given access to medical records in the course of an investigation, research, or studies of diseases or deaths which are of public health importance.

(g) The Virginia Department of Health may be provided with abstracts of records of data subjects having malignant tumors or cancers. Such abstracts may include the name, address, sex, race, and any other medical information required by law.

(h) Information may be released as requested for a formal investigation to the Virginia Department of Health, State Medical Examiner.

e. Access by special interest third parties.

(1) Release of information shall include a written, informed consent.

(2) Except for public events, no data other than directory information shall be released to the news media without the written, informed consent of the data subject or the authorized agent.

(3) No information shall be released to law-enforcement officers without the written, informed consent of the data subject or the authorized agent, or without judicial order.

(4) Audio tapes, video tapes, computerized data or other media reproduction are considered as confidential records and shall be treated like written material.

E. Procedure for changing a record.

1. Revoking an authorization of consent.

a. If anyone, such as an attorney, has a data subject sign an authorization which rescinds all prior authorizations, this negates all previous authorizations. The department shall make this a part of the case record.

b. When the revocation clause appears in the record, the department no longer has the authority to disseminate additional information other than to those on the regulation department access list.

c. If the data subject is currently a client, their counselor shall record any authorization which includes a revocation clause. This means that all routines for forwarding reports to those not on department's access list shall be stopped.

d. The rehabilitation counselor shall notify the Wilson Workforce and Rehabilitation Center (WWRC) counselor or sponsor of the situation and inform the data subject of the restriction.

e. The department shall acknowledge and comply with the attorney's request for information. A separate letter shall also advise the attorney that this clause denies access of information to persons or organizations which are responsible for continuing rehabilitation services. The department shall advise the attorney of the need to be provided with an additional statement which reinstates communication and correspondence.

2. Reinstating consent. When a satisfactory reinstatement statement and new consent is received from the attorney and the data subject, the department shall file the additional authorization and inform appropriate department counterparts about the new release.

3. Challenging and correcting a record by the data subject or agent.

a. The data subject or agent has a right to contest the accuracy or completeness of any personal record, except access to challenging or correcting a treating physician's mental record which has been identified as not to be reviewed by the data subject.

b. Data subjects who are currently clients shall be instructed by their counselor that any request to correct, amend, or delete information is to be done in writing, giving specific reasons why information is being contested.

c. The counselor shall submit this statement to their immediate supervisor.

d. The Supervisor shall interview staff, as necessary, examine pertinent records, and submit a written recommendation to their regional or center director. This recommendation is to include a statement and rationale to either uphold or to change existing records.

e. When the regional or center director determines that information which is being disputed is, in fact, incomplete, inaccurate, not pertinent, untimely, or unnecessary to be retained, that individual shall instruct the original writer to amend the report in question. If the originator is no longer an employee, the regional or center director or a designee shall prepare the amended report. A copy of the amended report shall be sent to the local office for the client's file.

f. The department shall disseminate the amended version of the report to any previous recipients and as part of the record for all further requests for information.

g. The department shall notify the data subject in writing of the decision. A copy of that notice is to be filed in data subject's local office file.

h. If the investigation does not change the record or resolve the dispute, the data subject may file a statement stating what he believes to be an accurate or complete version of that information. This statement becomes a permanent part of the record. The department shall forward a copy to all previous recipients who have access to the information being disputed.

F. Procedures of safeguarding records.

1. Maintaining security of records.

a. Data subject records are the property of the department and are entrusted to personnel who safeguard records from loss, defacement, or use by unauthorized persons.

b. No record is to be defaced by marking, underlining, or entering notations by anyone other than the originator of any document.

c. When a record is requested, either by court or a directive from the commissioner, a certified copy of the record shall be provided by the counselor.

d. Whoever removes records has the responsibility to assure confidentiality of content while it is out. It must never be left unattended in areas which are accessible to unauthorized individuals.

e. Confidentiality shall be maintained in work areas where casework documents are being prepared, filed, or distributed.

2. Violating confidentiality. Individuals who violate security standards or the confidentiality code by releasing information without obtaining or following procedures may be subject to their name being removed from the access list and to discipline under the standards of conduct.

G. Department's access list. The following have been approved to have access to the case records of clients served by the department:

1. Administrative and supervisory staff engaged in dutiful performance of their job which requires access to individual client files;

2. Service delivery personnel including, but not limited to, rehabilitation counselors, vocational evaluators, or psychiatrists; and

3. Clerical personnel as appropriate.

22VAC30-20-195. Youth with disabilities seeking subminimum wage employment.

A. Prior to youth with disabilities starting subminimum wage employment, the department shall provide youth with disabilities documentation upon completion of the following actions:

1. Appropriate pre-employment transition services available to a student with a disability under subsection A of 22VAC30-20-120 or transition services under IDEA.

2. Application for vocational rehabilitation services in accordance with subsection B of 22VAC30-20-20 with the result that the individual was determined:

a. Ineligible for vocational rehabilitation services in accordance with 22VAC30-20-80; or

b. Eligible for vocational rehabilitation services in accordance with 22VAC30-20-40 and (i) has an approved individualized plan for employment in accordance with 22VAC30-20-110; (ii) was unable to achieve the employment outcome specified in the individualized plan for employment despite working toward the employment outcome with reasonable accommodations and appropriate supports for a reasonable period of time; and (iii) the case record of service with vocational rehabilitation for the youth with a disability has been closed.

3. Receipt of career counseling and information and referral from the department to state, federal, and other resources in the individual's geographic area that offer employment related services and supports designed to enable the individual to explore and obtain competitive integrated employment. The career counseling and information and referral services shall:

a. Be provided in a manner that facilitates informed choice and decision making by the youth or the youth's representative as appropriate;

b. Not be for subminimum wage employment and did not directly result in employment compensated at a subminimum wage; and

c. Be provided within 30 calendar days of closure of the vocational rehabilitation case record of service.

B. The department, in consultation with the state education agency, shall implement a process that includes the following steps to document the completion of the actions described in this section:

1. The appropriate school official responsible for the provision of transition services shall provide the department documentation of completion of appropriate transition services under IDEA and under 34 CFR 397.30; and

2. The department shall provide documentation of completion of transition services and documentation of completed appropriate pre-employment transition services to the youth with a disability.

C. The documentation, which is provided to the youth with a disability, shall be in a form and manner that is accessible for the youth and shall contain the following:

1. Youth's name;

2. Determination made, including a summary of the reasons for the determination, or description of the service or activity completed;

3. Name of the individual making the determination or the provider of the required activity;

4. Date of the determination made or required service or activity completed;

5. Signature and date of signature of the department or educational personnel making the determination or documenting completion of the required service;

6. Signature of the department personnel transmitting the documentation to the youth with a disability;

7. Date and method (e.g., hand-delivered, faxed, mailed, emailed, etc.) by which the documentation was transmitted to the youth; and

8. A coversheet that itemizes the contents of the documents that have been provided to the youth.

D. The department shall provide to the youth documentation of completion of each action required in subsection A of this section (i) within 45 calendar days after the completion the action or (ii) within 90 calendar days if additional time is necessary due to extenuating circumstances.

E. In the event that a youth with a disability or, as applicable, the youth's parent or guardian refuses through informed choice to participate in any action required by this section, the department shall provide the youth within 10 calendar days of the refusal documentation that contains:

1. Youth's name;

2. A description and reason for the refusal;

3. Signature of the youth or, as applicable, the youth's parent or guardian;

4. Signature and date of signature of the department or educational personnel documenting the youth's refusal; and

5. Date and method (e.g., hand-delivered, faxed, mailed, emailed, etc.) by which documentation was transmitted to the youth.

22VAC30-20-200. Review of extended employment and other employment under special certificate provisions of the Fair Labor Standards Act.

A. For the first two years after an individual's record of services is closed (and thereafter if requested by the individual or, if appropriate, the individual's representative), the department shall annually semiannually review and reevaluate the status of each individual (i) determined by the department to have achieved an employment outcome in which the individual is compensated in accordance with § 14(c) of the Fair Labor Standards Act or; (ii) whose record of services is closed while the individual is in extended employment on the basis that the individual is unable to achieve an employment outcome consistent with 22VAC30-20-10; or the individual (iii) who made an informed choice to remain in extended employment. After the first two years, the reviews shall be conducted annually. The annual review and reevaluation shall include input from the individual or, if appropriate, the individual's representative to determine the interests, priorities, and needs of the individual with respect to competitive integrated employment.

B. The department shall make maximum effort, including the identification of vocational rehabilitation services, reasonable accommodations, and other support services, to enable the eligible individual to engage in competitive integrated employment.

C. The department shall obtain the signed acknowledgment of the individual, or, as appropriate, the individual's representative, that the annual review and reevaluations have been conducted.

22VAC30-20-210. Agency responsibilities to individuals with disabilities during subminimum wage employment.

A. The department shall provide individuals with disabilities, regardless of age, who are known to the department to be employed at subminimum wage the following:

1. Counseling and information services that (i) are provided in a manner understandable to the individual with a disability, (ii) facilitate the independent decision making and informed choice as the individual makes decisions regarding opportunities for competitive integrated employment, particularly with respect to supported employment and customized employment, and (iii) may include benefits counseling, particularly with regard to the impact of earned income on income-based financial, medical, and other benefits.

2. For individuals with a disability, information about (i) self-advocacy, (ii) self-determination, and (iii) peer mentoring training opportunities available in the community within 30 calendar days of being referred by an employer, or contractor or subcontractor of that employer, that holds special wage certificate described in § 14(c) of the federal Fair Labor Standards Act and has fewer than 15 employees.

B. Required intervals.

1. For individuals hired at subminimum wage on or after July 22, 2016, the services required by this section must be carried out once every six months for the first year of the individual's subminimum wage employment and annually thereafter for the duration of such employment.

2. For individuals already employed at subminimum wage prior to July 22, 2016, the services required by this section must be carried out once by July 22, 2016, and annually thereafter for the duration of such employment.

3. With regard to intervals required by subdivisions 1 and 2 of this subsection, the department's responsibility to provide the services in this section to those in subminimum wage shall be (i) calculated on the date of the closure for those with closed vocational rehabilitation case records of services or (ii) calculated based upon the date the individual becomes known to the department for those individuals without closed case records.

4. An individual with a disability becomes "known" to the department through self-identification, referral by a third party, through the individual's involvement with the vocational rehabilitation process, or any other method.

C. Documentation.

1. The department shall provide documentation to the individual (i) within 45 calendar days after completion of the activities required under subsection B of this section or (ii) within 90 calendar days if additional time is necessary due to extenuating circumstances, after completion of the actions required in subsection B of this section.

2. Documentation shall include the following:

a. Name of the individual;

b. Description of the service or activity completed;

c. Name of the provider of the required activity;

d. Date required service or activity was completed;

e. Signature and date of signature of individual documenting completion of the required service or activity;

f. Signature of department personnel (if different from subdivision 2 e of this subsection); and

g. Date and method (e.g., hand-delivered, faxed, mailed, emailed, etc.) by which the document was transmitted to the individual with a disability.

3. In the event an individual with a disability or, as applicable, the individual's representative refuses through informed choice, to participate in the activities required by this section, documentation shall contain:

a. Name of the individual;

b. Description of the refusal and reason for the refusal;

c. Signature of the individual with a disability or, as applicable, the individual's representative;

d. Signature and date of signature of department personnel documenting the individual's refusal; and

e. Date and method (e.g., hand-delivered, faxed, mailed, emailed, etc.) by which the document was transmitted to the individual with a disability.

4. The department shall retain a copy of all documentation required by this section consistent with the department's case management system.

D. The department may contract with other public or private services providers, as appropriate, to fulfill the requirements of this section. However, the contractor providing the services on behalf of the department shall not be an entity holding a special wage certificate under § 14(c) of the federal Fair Labor Standards Act.