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34 CFR § 361.36 Ability to serve all eligible individuals; order of selection for services

The Rehabilitation Act of 1973 (Rehabilitation Act), as amended by Title I of the Workforce Innovation and Opportunity Act (WIOA), requires the designated state unit (DSU) operating the Vocational Rehabilitation program to serve individuals with the most significant disabilities first when there are not enough resources to serve everyone who is eligible for VR services. Individuals with the most significant disabilities are given a priority over those with less significant disabilities, a process called an "order of selection."

In this event, an order of selection process must be developed and included in the VR services portion of the Unified or Combined State Plan which must describe the order to be followed in selecting eligible individuals to be provided VR services. (34 C.F.R. § 361.36(a)(1))

See the following link for all the requirements 34 CFR § 361.36 Ability to serve all eligible individuals; order of selection for services.
There are very specific requirements for both VR agencies implementing an order of selection and for those agencies maintaining that they can serve all eligible individuals. These requirements involve analyzing the DSU's resources to determine the number of individuals who are expected to apply for and be determined eligible for services, the number who can reasonably be served given the agency's resources, and the number who can be assisted to achieve employment outcomes. The DSU must re-evaluate its ability to serve all eligible individuals prior to the beginning of each fiscal year and must also re-evaluate its ability to do so should circumstances occur that decrease its personnel and fiscal resources or increase the costs of services. If circumstances change such that the DSU is unable to serve all eligible individuals, even in the middle of a fiscal year, then it must implement an order of selection.

An order of selection is based solely on the significance of disability, and any order of selection must be based on a refinement of the three criteria in the definition of an individual with a significant disability in 34 C.F.R. § 361.5(c)(30)

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 VR 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, mental illness, multiple sclerosis, muscular dystrophy, musculo-skeletal disorders, neurological disorders (including stroke and epilepsy), spinal cord conditions (including paraplegia and quadriplegia), sickle cell anemia, intellectual disability, 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 VR needs to cause comparable substantial functional limitation.

There are at least three categories in an order of selection: individuals with most significant disabilities, individuals with significant disabilities (which is a defined term in the Rehabilitation Act and regulations, and all other eligible individuals. Some agencies further divide either the first or second categories. The order can differentiate categories, usually by designating the number of functional limitations (e.g., three or more, two or more) or refining what is meant by "multiple services over an extended period of time."

Considerations such as type of disability, source of referral, the need for specific services, or the anticipated cost of services cannot be factored into the order of selection the DSU establishes.


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