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Provisions in the Final Regulations Governing the State VR Program Describing the Interplay with WIA and TWWIIA

Policy Brief 7

By:

Originally published: 2/2001

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Table of Contents

INTRODUCTION

On August 7, 1998 President Clinton signed into law the Workforce Investment Act of 1998 (Public law 105-220). Title I of the Act provides assistance to states interested in establishing statewide and local workforce investment systems (Title I of WIA). Title IV of the Workforce Investment Act sets out a complete rewrite of the Rehabilitation Act of 1973, including the State vocational rehabilitation program (State VR program).

On August 11, 2000 the Secretary of Labor published in the Federal Register (FR) final regulations implementing Title I of WIA. These regulations are codified at Part 662 of Title 20 of the Code of Federal Regulations (CFR). On November 12, 1999, the Secretary of Labor published interim final regulations implementing section 188 of WIA pertaining to nondiscrimination and equal opportunity. These regulations are codified at Part 37 of Title 29 of the Code of Federal Regulations.

On December 17, 1999, President Clinton signed into law the Ticket To Work and Work Incentive Improvement Act (TWWIIA). On December 28, 2000, the Commissioner of the Social Security Administration issued a Notice of Proposed Rulemaking implementing the new Ticket to Work and Self-Sufficiency Program (Ticket to Work Program) authorized under TWWIIA.

On February 28, 2000, the Secretary of Education published proposed regulations governing the State VR program. [65 FR 10620-10665] On January 17, 2001, the Secretary of Education published final rules governing the State VR program. 66 FR 4380-4435] These final regulations replace current regulations codified at Part 361 of Title 34 of the Code of Federal Regulations.

The purpose of this policy brief is to identify and describe the provisions of the final regulation describing the responsibilities of a designated State unit to design and operate the State VR program as an integral component of the statewide workforce investment system, as envisioned by WIA. The final regulations envision major systemic changes in the operation of the State VR program through the creation of a streamlined, collaborative partnership with other components of the statewide workforce investment system. This new "partnership" requires a more "activist role" by State VR agencies regarding the provision of services to persons with disabilities in the State VR program itself as well as other components of the workforce investment system.

The purpose of the policy brief is also to identify and describe the provisions in the final regulations describing the relationship between the State VR program and the designated State unit and the new Ticket to Work Program.

BACKGROUND - THE GOAL OF TITLE I OF WIA

What is the overall goal of Title I of WIA?

The overall goal of Title I of the Workforce Investment Act (Title I of WIA) is to increase employment, retention, and earnings of persons (including persons with disabilities) participating in employment-related activities supported by an integrated workforce investment system. The establishment of a One-Stop service delivery system is the cornerstone of the legislation. [65 FR 10620 (February 28, 2000)]

The intent of this system is to streamline and expand access to numerous workforce investment and educational and other human resource services, activities and programs for job seekers, including individuals with disabilities, and for employers. Rather than requiring individuals and employers to seek workforce development information and services at several different locations, Title I of WIA requires States and communities to create a user-friendly One-Stop system through the coordination at the "street level" of multiple workforce development programs and resources. [65 FR 10620 (February 28, 2000)] This "seamless" system has been described by the Department of Labor (DOL) as a "one right door and no wrong door approach." [64 FR 18669 (April 15, 1999)]

This One-Stop service delivery system must be designed to address the needs of all individuals, including individuals with disabilities. In order to make services available under the One-Stop system to persons with disabilities, the system must be "accessible" consistent with the provisions of WIA, the Americans with Disabilities Act, and Section 504 of the Rehabilitation Act of 1973. [65 FR 10621, (February 28, 2000); 64 FR 9403-9404 (February 25, 1999)]

RELATIONSHIP BETWEEN THE STATE VR PROGRAM AND WIA

What is the relationship between the State VR program and WIA? Why is the State VR program included as part of the statewide workforce development system?

The State vocational rehabilitation services program (the State VR program) must be an integral part of a statewide workforce investment system. [34 CFR 361.1]

The preamble to the proposed regulation explained why. Participation by State units administering the VR program will result in enhancing the range and quality of services accessible to program participants. Collaboration is intended to produce better information, more comprehensive services, easier access to services, and improved long-term employment outcomes. Thus, effective participation of the State VR program is critical to enhancing opportunities for individuals with disabilities in the State VR program itself as well as other components of the workforce investment system in each State and local area. [65 FR 10621, 10624 (February 28, 2000)]

APPLICABLE REGULATIONS

Do the regulations implementing WIA apply to State vocational rehabilitation agencies?

Yes. The regulations in 20 CFR Part 662 (which implements the One-Stop system requirements under Title I of WIA) apply to the State VR program. In addition, 29 CFR part 37 (which implements the civil rights requirements under section 188 of WIA) applies to the extent programs and activities of the State VR program are being conducted as part of the One-Stop service delivery system. [34 CFR 361.4]

Citing to these parts of the Federal regulations is intended solely as a means of notifying state VR agencies of their regulatory obligations as One-Stop system partners. Title I of WIA and the implementing regulations specify that partner programs, such as the designated State unit, are to participate in One-Stop system activities in a manner that is consistent with Federal law authorizing the individual partner program. In other words, designated State units must partner with other components of the One-Stop system in accordance with Title I of the Rehabilitation Act and the implementing regulations. [66 FR 4417 (January 17, 2001)]

SUBMISSION OF THE STATE PLAN

What is the relationship between the State plan submitted under the Rehabilitation Act and the State Plan submitted under WIA?

Each State is required to submit its State plan for the VR program on the same date that it submits either a State plan for Title I of WIA or a State unified plan under Section 501 of WIA. In other words, a State has three options for submitting its VR State plan.

First, a State may submit a separate VR State plan on the same date as the State submits its State plan under Title I of WIA.

Second, a State may include the State VR program as part of the State unified plan submitted under Section 501 of WIA. If the State elects this option, the portion of the State unified plan for vocational rehabilitation services must meet the State plan requirements specified in the regulations governing the State VR program.

Third, a State may submit a separate VR State plan on the same date as it submits its State unified plan (that does not include the State VR program) under Section 501 of WIA. [34 CFR 361.10]

RELATIONSHIP BETWEEN THE STATE REHABILITATION COUNCIL AND THE STATE WORKFORCE INVESTMENT BOARD

What is the relationship between the State Rehabilitation Council and the State Workforce Investment Board?

The State Rehabilitation Council must carry out its designated functions after consulting with the State Workforce Investment Board. [34 CFR 361.17(h)]

Must the State Rehabilitation Council include at least one representative of the State workforce investment board?

Yes. [34 CFR 361.17(b)(1)((xi)] A Council member who serves on the State Workforce Investment Board, however, cannot represent both the Board and another organization on the Council. [66 FR 4423 (January 17, 2001)]

COMPREHENSIVE SYSTEM OF PERSONNEL DEVELOPMENT

What are the responsibilities under the CSPD to train staff regarding WIA?

The State plan must include the State agency's policies and describe the procedures and activities the State agency will undertake to ensure that all personnel employed by the State unit receive appropriate and adequate training.

The specific training areas for staff development must be based on the needs of each State unit and may include, but are not limited to training regarding the Workforce Investment Act and the amendments to the Rehabilitation Act made by Title IV of WIA. [34 CFR 361.18(d)(2)(i)]

REQUIREMENTS RELATED TO THE WIA SYSTEM

Is the State vocational rehabilitation agency a required partner under WIA?

Yes. The designated State unit or the sole local agency under the supervision of the State unit is responsible for participating as a partner in the One-Stop service delivery system under Title I of WIA. [34 CFR 361.13(c)(1)(v)]

What are the general responsibilities of a State vocational rehabilitation agency as a mandatory partner under Title I of WIA?

As a required partner, the designated State unit must carry out the following functions [34 CFR 361.23(a)]:

Under what circumstances may designated State units use State VR funds to pay for core services and other activities made available by One-Stops?

Participation by designated State units in the One-Stop system must be performed in a manner that is consistent with Title I of the Rehabilitation Act and the implementing regulations. Thus, participation by the designated State units in the cost of core services or any other One-Stop system activities cannot result in expenditures for services to individuals who do not meet the priority for services under the order of selection. The designated State unit, however, can participate, as appropriate, in the cost of intake and other expenditures that would normally be borne by the designated State unit prior to determining eligibility and the individual's priority category under the state's order of selection. [66 FR 4425, 4426 (January 17, 2001)]

What are the responsibilities of other partners in the workforce investment system to serve persons with disabilities?

All partner programs (not just the designated state unit implementing the StateVR program) have a legal responsibility under Title I of WIA, the ADA, and Section 504 of the Rehabilitation Act to serve persons with disabilities. Some individuals with disabilities may receive the full scope of needed services through the One-Stop system without accessing the State VR program at all; while others may be referred to the designated State unit for a program of VR services or receive a combination of services from the State VR program and other One-Stop system partners. [66 FR 4425 (January 17, 2001)]

Nothing in Title I or Title IV of WIA or the implementing regulations should be construed to require designated State units to pay the costs of providing individuals with disabilities access to the One-Stop system. In fact, that responsibility falls to the One-Stop system in accordance with the ADA and Section 504. [66 FR 4425 (January 17, 2001)]

In addition, some individuals who are eligible for VR services may choose not to participate in the VR program and, therefore, also may be served exclusively by other partner programs of the One-Stop system. [66 FR 4425 (January 17, 2001)]

What are the specific requirements regarding the entering into of cooperative agreements between State VR agencies and other partners?

The State plan must assure that the designated State unit or the designated State agency enters into cooperative agreements with other entities that are partners under the One-Stop service delivery system and replicates those agreements at the local level between individual offices of the designated State unit and local entities carrying out the One-Stop service delivery system or other activities through the statewide workforce investment system. [34 CFR 361.23(b)(1)]

The purpose of entering into these cooperative agreements is to increase the capacity of the partners, and the One-Stop service delivery system as a whole, to better address the needs of individuals with disabilities. [65 FR 10624 (February 28, 2000)]

These cooperative agreements may provide for [34 CFR 361.23(b)(2)]:

COMPREHENSIVE STATEWIDE ASSESSMENT; STATE STRATEGIES

Must the comprehensive statewide assessment address the needs of individuals with disabilities served by other components of the workforce investment system?

Yes. The VR State plan must include the results of a comprehensive statewide assessment, particularly the vocational rehabilitation services needs of, among others, individuals with disabilities served through other components of the statewide workforce investment system as identified by those individuals with disabilities and personnel assisting those individuals through the components of the system. [34 CFR 361.29(a)(1)( i) (C)]

Must the state develop strategies for assisting other components of the statewide workforce investment system in assisting individuals with disabilities?

Yes. The VR State plan must describe strategies the State will use to address the needs identified in the comprehensive assessment and achieve agreed on goals and priorities, including, among other things, strategies for assisting other components of the statewide workforce investment system in assisting individuals with disabilities. [34 CFR 361.29(d)(5)]

COOPERATIVE AGREEMENTS WITH PRIVATE NONPROFIT ORGANIZATIONS

Do the regulations include any obligations/restrictions relating to agreements between state VR agencies and employment networks under TWWIIA?

The state plan must describe the manner in which cooperative agreements with private nonprofit vocational rehabilitation service providers will be established. [34 CFR 361.31] Neither Title I of the Rehabilitation Act nor the implementing regulations are intended to limit or prohibit the establishment of fee-for-service or other reimbursement type agreements between the designated State unit and employment networks. Typically, fee-for-service arrangements enable private service providers to purchase from the designated State unit services that are needed by an individual with a disability who is not a state VR program participant. In addition, nothing in Title I of the Rehabilitation Act or the implementing regulations affects the ability of the designated State unit to serve as an employment network as authorized under TWWIIA. [66 FR 4426 (January 17, 2001)]

INFORMATION AND REFERRAL SERVICES

Do any of the requirements relating to information and referral services under the State VR program apply to WIA?

Yes. The designated State unit must implement an information and referral system. The system must, among other things, refer individuals with disabilities to other appropriate Federal and State programs, including other components of the statewide workforce investment system. [34 CFR 361.37(a)(2)]

In the event that vocational rehabilitation services cannot be provided to all eligible individuals with disabilities applying for the services, the State plan must show the order for selecting eligible individuals. The "order of selection" must be consistent with criteria established by the State and assure that individuals with the most significant disabilities will be selected first for the provision of vocational rehabilitation services. A designated State unit operating under an "order of selection" must assist eligible individuals who otherwise would not receive services from the State unit to secure needed employment assistance from other entities, particularly other program components of the statewide workforce investment system. [34 CFR 361.37(a)(2)]

In making referrals, the designated state unit must refer the individual to Federal or State programs carried out by other components of the statewide workforce investment system best suited to address the specific employment needs of an individual with a disability. In addition, the designated State unit must provide the individual who is being referred by the designated State unit a notice of the referral to the agency carrying out the program, information identifying the specific point of contact within the agency to which the individual is being referred, and information and advice regarding the most suitable services to assist the individual to prepare for, secure, retain, or regain employment. [34 CFR 361.37(c)]

What responsibilities does the designated State unit have to establish and implement standards for the handling of referrals?

The designated State unit 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 the One-Stop service delivery system. [34 CFR 361.41(a)]

Once an individual has submitted an application for vocational rehabilitation services, including applications made through common intake procedures in One-Stop centers, an eligibility determination must be made within 60 days, subject to specified exceptions. An individual is considered to have submitted an application when the individual or the individual's representative has completed and signed an agency application form or has completed a common intake application form in a One-Stop center requesting vocational rehabilitation services. [34 CFR 361.41(b)(1) and (2)]

The designated State unit must ensure that its application forms are widely available throughout the State, particularly in the One-Stop centers established under Title I of WIA. [34 CFR 361.41(b)(3)]

If an individual is determined to be ineligible for State VR services, what is the responsibility of the State unit to refer the individual to other programs that are part of the One-Stop system?

If the designated State unit determines that an individual is ineligible for vocational rehabilitation services, the unit must, among other things, refer the individual to other training and employment-related programs that are part of the One-Stop service delivery system under Title I of WIA. [34 CFR 361.43(d)]

CONTENT OF THE INDIVIDUALIZED PLAN FOR EMPLOYMENT (IPE)

Must the IPE describe the responsibilities of entities other than the State VR program to provide services and benefits?

Yes. The terms and conditions of the IPE must include, among other things, the responsibilities of other entities as a result of arrangements made under the comparable services and benefits requirements (see below). [34 CFR 361.46(a)(6)(iii)]

Must the IPE provide for coordination of services provided under the IPE with services provided under other Federal or state programs?

Yes. The IPE must provide for the coordination of services provided under an IPE with services provided under other individualized plans established under other Federal or State programs. [34 CFR 361.46(b)(5)]

RECORD OF SERVICES

Must the designated State unit provide documentation on services provided to an individual who is referred to other programs within the One-Stop service delivery system?

Yes. In the event an individual is referred to another program through the designated State unit's information and referral system, including other components of the statewide workforce investment system, documentation must be provided on the nature and scope of service provided by the designated State unit to the individual and on the referral itself. [34 CFR 361.47(a)(13)]

SCOPE OF VOCATIONAL REHABILITATION SERVICES

What services related to WIA must the State unit ensure are provided to individuals with disabilities?

The term "vocational rehabilitation services" includes, among other services, 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 system. [34 CFR 361.48(d)]

COMPARABLE SERVICES AND BENEFITS

How are referral and other services to secure needed services from other agencies under WIA treated under the comparable services and benefits provisions?

Referral and other services to secure needed services from other agencies, including other components of the statewide workforce investment system, are exempt from the comparable services and benefits requirement if those services are not available under the Rehabilitation Act and implementing regulations. [34 CFR 361.53(b)(3)]

Must the interagency agreements include policies relating to comparable services and benefits?

Yes. The State plan must assure that the Governor, in consultation with the entity in the State responsible for the vocational rehabilitation program and other appropriate agencies, will ensure that an interagency agreement or other mechanism for interagency coordination takes effect between the designated State vocational rehabilitation unit and any appropriate public entity, including the State entity responsible for administering the State Medicaid program and a component of the statewide workforce investment system to ensure the provision of vocational rehabilitation services (other than services exempt from the comparable benefits and services requirement) that are included in the IPE. [34 CFR 361.53(d)]

Does a "Ticket" provided under the Ticket to Work Program constitute a comparable service and benefit for purposes of the state VR program?

Because Social Security recipients with disabilities are issued "Tickets" under TWWIIA in order to receive employment-related services from an employment network, the "Ticket" constitutes a comparable service and benefit under the state VR program. Thus, to the extent that a ticket holder is receiving services from another entity (i.e., an employment network), the designated State unit need not expend state VR program funds on services that are comparable to the services the individual is already receiving. On the other hand, if the individual initially chooses the designated State unit as its employment network (or otherwise transfers his or her ticket to the designated State unit) then the individual would be served solely by the designated State unit and the ticket would not be considered a comparable service and benefit. [66 FR 4418 (January 17, 2001)]

PARTICIPATION OF INDIVIDUALS IN COST OF SERVICES BASED ON FINANCIAL NEED

May the designated State unit charge SSI and SSDI recipients for the cost of vocational rehabilitation services?

There is no Federal requirement that the financial need of individuals be considered in the provision of vocational rehabilitation services. The designated State unit may, however choose to consider the financial need of eligible individuals for purposes of determining the extent of their participation in the costs of vocational rehabilitation services. The authority to consider participation of individuals in the cost of vocational rehabilitation services based on financial need does not, however, extend to individuals determined eligible for Social Security Disability Insurance and Supplemental Security Income benefits. [34 CFR 361.54, 66 FR 4433 (January 17, 2001)]

RESOURCES

For additional information about the implementation of the Workforce Investment Act from a disability policy perspective, see the Policy Briefs entitled:

Policy Brief Series

Also see the following papers:

Additional RRTC/ICI Publications on WIA and One-Stop Systems:

For additional information about the implementation of the Ticket to Work Program see the following RRTC/ICI Publications:

These publications are available via the Institute for Community Inclusion web site at http://www.communityinclusion.org/publications

ACKNOWLEDGEMENTS

Policy Brief, Vol. 3, No. 2

This policy brief was written by Robert Silverstein of The Center for the Study and Advancement of Disability Policy (CSADP) The CSADP is a partner of the Rehabilitation Research and Training Center on State Systems and Employment at the Institute for Community Inclusion/UAP (#H133B30067), and the Rehabilitation Research and Training Center on Workforce Investment and Employment Policy at Community Options, Inc. (#H133B980042). The Centers are funded, in part, by the National Institute on Disability and Rehabilitation Research (NIDRR) of the US Department of Education. The opinions contained in this publication are those of the grantees and do not necessarily reflect those of the US Department of Education.

For more information on this study, please contact Robert Silverstein at (202) 223-5340 or email at Bobby@CSADP.org.

For a publications brochure or general information, contact the Institute for Community Inclusion, University of Massachusetts Boston, 100 Morrissey Boulevard, Boston MA 02125. (617) 287-4300 voice; (617) 287-4350 TTY; ici@umb.edu (e-mail).

This publication will be made available in alternate formats upon request.

Center on State Systems and Employment (RRTC)
Center on Workforce Investment and Employment Policy (RRTC)