[Code of Federal Regulations]
[Title 34, Volume 2]
[Revised as of July 1, 2002]
From the U.S. Government Printing Office via GPO Access
[CITE: 34CFR361.36]

[Page 293-295]
 
                           TITLE 34--EDUCATION
 
            REHABILITATIVE SERVICES, DEPARTMENT OF EDUCATION
 
PART 361--STATE VOCATIONAL REHABILITATION SERVICES PROGRAM--Table of Contents
 
      Subpart B--State Plan and Other Requirements for Vocational 
                         Rehabilitation Services
 
Sec.  361.36  Ability to serve all eligible individuals; order of selection for services.

    (a) General provisions.
    (1) The designated State unit either must be able to provide the 
full range of services listed in section 103(a) of the Act and Sec.  
361.48, as appropriate, to all eligible individuals or, in the event 
that vocational rehabilitation services cannot be provided to all 
eligible individuals in the State who apply for the services, include in 
the State plan the order to be followed in selecting eligible 
individuals to be provided vocational rehabilitation services.
    (2) The ability of the designated State unit to provide the full 
range of vocational rehabilitation services to all eligible individuals 
must be supported by a determination that satisfies the requirements of 
paragraph (b) or (c) of this section and a determination that, on the 
basis of the designated State unit's projected fiscal and personnel 
resources and its assessment of the rehabilitation needs of individuals 
with significant disabilities within the State, it can--
    (i) Continue to provide services to all individuals currently 
receiving services;
    (ii) Provide assessment services to all individuals expected to 
apply for services in the next fiscal year;
    (iii) Provide services to all individuals who are expected to be 
determined eligible in the next fiscal year; and
    (iv) Meet all program requirements.
    (3) If the designated State unit is unable to provide the full range 
vocational rehabilitation services to all eligible individuals in the 
State who apply for the services, the State plan must--
    (i) Show the order to be followed in selecting eligible individuals 
to be provided vocational rehabilitation services;
    (ii) Provide a justification for the order of selection;
    (iii) Identify service and outcome goals and the time within which 
the goals may be achieved for individuals in each priority category 
within the order, as required under Sec.  361.29(c)(5); and
    (iv) Assure that--
    (A) In accordance with criteria established by the State for the 
order of selection, individuals with the most significant disabilities 
will be selected first for the provision of vocational rehabilitation 
services; and
    (B) Individuals who do not meet the order of selection criteria will 
have access to services provided through the information and referral 
system established under Sec.  361.37.
    (b) Basis for assurance that services can be provided to all 
eligible individuals.
    (1) For a designated State unit that determined, for the current 
fiscal year and the preceding fiscal year, that it is able to provide 
the full range of services, as appropriate, to all eligible individuals, 
the State unit, during the current fiscal and preceding fiscal year, 
must have in fact--
    (i) Provided assessment services to all applicants and the full 
range of services, as appropriate, to all eligible individuals;
    (ii) Made referral forms widely available throughout the State;
    (iii) Conducted outreach efforts to identify and serve individuals 
with disabilities who have been unserved or underserved by the 
vocational rehabilitation system; and
    (iv) Not delayed, through waiting lists or other means, 
determinations of eligibility, the development of individualized plans 
for employment for individuals determined eligible for vocational 
rehabilitation services, or the provision of services for eligible 
individuals for whom individualized plans for employment have been 
developed.
    (2) For a designated State unit that was unable to provide the full 
range of services to all eligible individuals during the current or 
preceding fiscal year or that has not met the requirements in paragraph 
(b)(1) of this section, the determination that the designated State unit 
is able to provide the full range of vocational rehabilitation services 
to all eligible individuals in the next fiscal year must be based on--
    (i) Circumstances that have changed that will allow the designated 
State unit to meet the requirements of paragraph (a)(2) of this section 
in the next fiscal year, including--
    (A) An estimate of the number of and projected costs of serving, in 
the next

[[Page 294]]

fiscal year, individuals with existing individualized plans for 
employment;
    (B) The projected number of individuals with disabilities who will 
apply for services and will be determined eligible in the next fiscal 
year and the projected costs of serving those individuals;
    (C) The projected costs of administering the program in the next 
fiscal year, including, but not limited to, costs of staff salaries and 
benefits, outreach activities, and required statewide studies; and
    (D) The projected revenues and projected number of qualified 
personnel for the program in the next fiscal year;
    (ii) Comparable data, as relevant, for the current or preceding 
fiscal year, or for both years, of the costs listed in paragraphs 
(b)(2)(i)(A) through (C) of this section and the resources identified in 
paragraph (b)(2)(i)(D) of this section and an explanation of any 
projected increases or decreases in these costs and resources; and
    (iii) A determination that the projected revenues and the projected 
number of qualified personnel for the program in the next fiscal year 
are adequate to cover the costs identified in paragraphs (b)(2)(i)(A) 
through (C) of this section to ensure the provision of the full range of 
services, as appropriate, to all eligible individuals.
    (c) Determining need for establishing and implementing an order of 
selection.
    (1) The designated State unit must determine, prior to the beginning 
of each fiscal year, whether to establish and implement an order of 
selection.
    (2) If the designated State unit determines that it does not need to 
establish an order of selection, it must reevaluate this determination 
whenever changed circumstances during the course of a fiscal year, such 
as a decrease in its fiscal or personnel resources or an increase in its 
program costs, indicate that it may no longer be able to provide the 
full range of services, as appropriate, to all eligible individuals, as 
described in paragraph (a)(2) of this section.
    (3) If a DSU establishes an order of selection, but determines that 
it does not need to implement that order at the beginning of the fiscal 
year, it must continue to meet the requirements of paragraph (a)(2) of 
this section, or it must implement the order of selection by closing one 
or more priority categories.
    (d) Establishing an order of selection.
    (1) Basis for order of selection. An order of selection must be 
based on a refinement of the three criteria in the definition of 
``individual with a significant disability'' in section 7(21)(A) of the 
Act and Sec.  361.5(b)(31).
    (2) Factors that cannot be used in determining order of selection of 
eligible individuals. An order of selection may not be based on any 
other factors, including--
    (i) Any duration of residency requirement, provided the individual 
is present in the State;
    (ii) Type of disability;
    (iii) Age, gender, race, color, or national origin;
    (iv) Source of referral;
    (v) Type of expected employment outcome;
    (vi) The need for specific services or anticipated cost of services 
required by an individual; or
    (vii) The income level of an individual or an individual's family.
    (e) Administrative requirements. In administering the order of 
selection, the designated State unit must--
    (1) Implement the order of selection on a statewide basis;
    (2) Notify all eligible individuals of the priority categories in a 
State's order of selection, their assignment to a particular category, 
and their right to appeal their category assignment;
    (3) Continue to provide all needed services to any eligible 
individual who has begun to receive services under an individualized 
plan for employment prior to the effective date of the order of 
selection, irrespective of the severity of the individual's disability; 
and
    (4) Ensure that its funding arrangements for providing services 
under the State plan, including third-party arrangements and awards 
under the establishment authority, are consistent with the order of 
selection. If any funding arrangements are inconsistent with the order 
of selection, the designated State unit must renegotiate these funding 
arrangements so that they are consistent with the order of selection.

[[Page 295]]

    (f) State Rehabilitation Council. The designated State unit must 
consult with the State Rehabilitation Council, if the State unit has a 
Council, regarding the--
    (1) Need to establish an order of selection, including any 
reevaluation of the need under paragraph (c)(2) of this section;
    (2) Priority categories of the particular order of selection;
    (3) Criteria for determining individuals with the most significant 
disabilities; and
    (4) Administration of the order of selection.

(Approved by the Office of Management and Budget under control number 
1820-0500)

(Authority: Sections 12(d); 101(a)(5); 101(a)(12); 101(a)(15)(A), (B) 
and (C); 101(a)(21)(A)(ii); and 504(a) of the Act; 29 U.S.C. 709(d), 
721(a)(5), 721(a)(12), 721(a)(15)(A), (B) and (C); 721(a)(21)(A)(ii), 
and 794(a))

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