The Rehabilitation Act of 1973, as amended by Title IV of WIOA, and its implementing regulations clearly permit supporting individuals with disabilities who require VR services to advance in employment.
Purpose of the VR Program and the Third Eligibility Criterion:
The purpose of the VR program emphasizes that VR services are to assist individuals to achieve competitive integrated employment and economic self-sufficiency (34 C.F.R. 361.1(b)). The VR program achieves this objective by developing and providing VR services for individuals with disabilities, consistent with their unique strengths, resources, priorities, concerns, abilities, capabilities, interests, and informed choice. Further, in describing the third eligibility criterion, 34 C.F.R. § 361.42(a)(1)(iii) requires that a qualified VR counselor employed by the VR agency make a determination that the applicant requires VR services to prepare for, secure, retain, advance in, or regain employment that is consistent with the individual’s unique strengths, resources, priorities, concerns, abilities, capabilities, interest, and informed choice.
The preamble to the final regulations published on August 19, 2016, contains a clarifying discussion regarding the concept of "advancement in employment." Section 102(a)(1)(B) of the Rehabilitation Act allows for an individual with a disability, whose physical or mental impairment constitutes a substantial impediment to employment, to be determined eligible for VR services if they require services to prepare for, secure, retain, advance in, or regain employment. By adding the phrase “advance in,” the statute and the regulations reinforce the Department's long-standing commitment that the VR program must provide comprehensive services to assist individuals with disabilities to achieve their maximum vocational potential. The VR program is not intended solely to place individuals with disabilities in entry-level jobs but rather to assist them to obtain appropriate employment, given their unique strengths, resources, priorities, concerns, abilities, capabilities, interests, and informed choice. The extent to which VR agencies should assist eligible individuals to advance in their careers by providing VR services depends upon whether the individual has achieved employment that is consistent with this standard. The preamble indicates that RSA, consistent with long-standing Department policy, interprets the phrase “advance in employment,” as used in section 102(a)(1)(B) of the Act and final §361.42(a)(1)(iii), broadly to include advancement within an individual’s current employment or advancement into new employment. In this way, the VR program ensures that individuals with disabilities obtain the services necessary so they can pursue and engage in high-demand jobs available in today’s economy.
Advanced Training in Institutions of Higher Education:
While many individuals with disabilities come to the VR agency with limited education or skills in their chosen field, some come to the agency already having received postsecondary education and perhaps having worked in their chosen field for a number of years. These latter individuals may require advanced training so that their employment remains consistent with their unique strengths, abilities, capabilities, and informed choice. Furthermore, a number of professions require advanced degrees even at an entry-level (e.g., law, medicine, and some of the sciences).
In describing "vocational and other training services" in 34 C.F.R. § 361.48(b(6), this term now explicitly includes advanced training. Specifically, the VR agency may provide "advanced training in, but not limited to, a field of science, technology, engineering, mathematics (including computer science), medicine, law, or business)."
The preamble to the regulations reinforces this concept. The VR agency's assistance could include, as appropriate for the individual, graduate-level postsecondary education, if necessary, to achieve the advancement in employment specified in the vocational goal on the individual's IPE. In this way, the VR program ensures that individuals with disabilities obtain the services necessary so they can pursue and engage in high-demand jobs available in today's economy. Although the phrase “advance in” employment is new in both the statute and these final regulations, its inclusion merely mirrors long-standing RSA policy as set forth in RSA-PD-97-04, dated August 19, 1997.
Both in the definition of post-employment services in 34 C.F.R. § 361.5(c)(41) and in the description of components of the IPE in 34 C.F.R. § 361.45(d(8), advancing in employment is one possible reason for providing such post-employment services, particularly when employment is no longer consistent with the individual's strengths, abilities, capabilities, interests, and informed choice. A VR agency provides post-employment services under an amended IPE after an individual achieves an employment outcome, but while the individual still meets the definition of a “participant” and before the individual is reported as “exiting” from the VR program. When it is determined that advanced training is necessary for an individual to "advance in employment as described above, careful consideration should be given in terms of whether or not these services can be provided under post-employment services if the individual has achieved an employment outcome and has not yet exited and whether or not the services are limited in scope and duration; and available to meet rehabilitation needs that do not require a complex and comprehensive provision of services. More often than not, advanced training is not a service provided as part of post-employment. If the individual has not yet exited, the IPE would be amended and services provided as appropriate. If the individual has exited, they would need to reapply, be determined eligible, and develop an IPE. Because post-employment services are meant to be limited in scope and duration, it is possible that providing advanced training will require the VR agency to reopen an individual's case before providing needed services to enable that individual to achieve appropriate employment rather than providing such services as time-limited post-employment services.
Comparable Services and Financial Need:
Notwithstanding the requirements to assist individuals to advance in employment consistent with their informed choice, including the provision of training services leading to advanced degrees, the VR agency, and the individual must make maximum efforts to secure grant assistance in whole or in part from other sources before providing training services in an institution of higher education with VR funds. In addition, the VR agency may require the financial participation of the individual with disabilities in the cost of such training services.