Participation of individuals in cost of services based on financial need.
One of the methods State Vocational Rehabilitation Agencies (SVRAs) may use to contain program costs is the implementation of a financial needs test. The provisions related to an individual's participation in the cost of services can be found in 34 C.F.R. §361.54.
What general requirements apply?
There is no Federal requirement that the financial need of individuals with disabilities be considered in the provision of VR services (34 C.F.R. §361.54(a). However, the VR agency may choose to consider the financial need of eligible individuals or individuals who are receiving services through trial work experiences for purposes of determining the extent of their participation in the costs of some VR services (34 C.F.R. §361.54(b)(1)). If the agency chooses to implement a financial needs test for certain services, specific requirements apply.
What should the VR agency consider when developing financial need policies?
First, in accordance with 34 C.F.R. §361.54(b)(2), if the SVRA chooses to consider the financial need of eligible individuals or individuals in trial work experiences, it must maintain written policies explaining the method it will use for determining the financial need of the individual with disabilities. The policies must also specify the types of VR services for which the SVRA has established a financial needs test. Certain services must be exempt from such a test (see below), and the agency does not need to apply a financial needs test to all other non-exempt services.
The financial need policies must be applied uniformly to all individuals in similar circumstances. The policies may require different levels of need for different geographic regions in the State, but they must be applied uniformly to all individuals within each geographic region. Implementing a policy that takes into account the geographic diversity in a state may result in the SVRA being able to address the variation in the cost of living between urban and rural areas.
The financial need policies must ensure that the level of an individual's participation in the cost of VR services is:
- Based on the individual's financial need, including consideration of any disability-related expenses paid by the individual; and
- Not so high as to effectively deny the individual a necessary service.
What services must be exempt from a financial needs test?
The SVRA may not apply a financial needs test, or require the financial participation of the individual, as a condition for furnishing the following VR services, listed in 34 C.F.R. §361.54(b)(3)(i):
- Assessment for determining eligibility and priority for services under 34C.F.R. §361.48(b)(1), except those non-assessment services that are provided to an individual with a significant disability during either an exploration of the individual's abilities, capabilities, and capacity to perform in work situations through the use of trial work experiences under 34 C.F.R. §361.42(e);
- Assessment for determining VR needs under 34 C.F.R. §361.48(b)(2);
- VR counseling and guidance under 34 C.F.R. §361.48(b)(3);
- Referral and other services under 34 C.F.R. §361.48(b)(4);
- Job-related services under 34 C.F.R. §361.48(b)(12);
- Personal assistance services under 34 C.F.R. §361.48(b)(14); and
- Any auxiliary aid or service (e.g., interpreter services under §361.48(b)(10), reader services under §361.48(b)(11)) that an individual with a disability requires under section 504 of the Rehabilitation Act or the Americans with Disabilities Act, or regulations implementing those laws, in order for the individual to participate in the VR program.
What exception applies to individuals with disabilities as determined by the Social Security Administration?
The VR agency may not use a financial needs test or require the financial participation of an individual as a condition for furnishing any VR service if the individual has been determined eligible for Social Security benefits under titles II or XVI of the Social Security Act (34 C.F.R.361.54(b)(3)(ii))).
RSA reinforced this regulatory requirement in RSA-TAC-22-03, issued on April 22, 2022. Specifically, the TAC states: When State VR agencies fail to comply with the prohibition in 34 C.F.R. § 361.54(b)(3)(ii), these agencies may be preventing SSI and SSDI recipients from receiving the full array of VR services needed to achieve their employment outcomes. Financial needs tests and policies that require participation in the cost of VR services may disincentivize these individuals from participating in the VR program, thereby hampering their ability to achieve competitive integrated employment and reduce their reliance on public benefits.”