Attachment 1 - Vocational Rehabilitation Rules Side by Side Analysis

Yellow Highlighting = differences between the two chapters

Blue Highlighting = division/agency names or law/rule references that need to be updated

CHAPTER 854 DIVISION FOR BLIND SERVICES / CHAPTER 856 DIVISION FOR REHABILITATION SERVICES / Recommendation
TITLE 40 SOCIAL SERVICES AND ASSISTANCE
PART 20 TEXAS WORKFORCE COMMISSION
CHAPTER 854 DIVISION FOR BLIND SERVICES
SUBCHAPTER B VOCATIONAL REHABILITATION PROGRAM / TITLE 40 SOCIAL SERVICES AND ASSISTANCE
PART 20 TEXAS WORKFORCE COMMISSION
CHAPTER 856 DIVISION FOR REHABILITATION SERVICES
SUBCHAPTER A VOCATIONAL REHABILITATION SERVICES PROGRAM / Rename Chapter 856“Vocational Rehabilitation Services.” Remove Subchapter B from Chapter 854. Rename Chapter 854 “Blind Services” and retain the existing Chapter 854 subchapters on the Criss Cole Rehabilitation Center, Business Enterprises of Texas, and Independent Living Services for Older Individuals Who Are Blind.
DIVISION 1 PROGRAM AND SUBCHAPTER PURPOSE
RULE §854.20 Purpose
The Vocational Rehabilitation Program is a joint state- and federal-funded program administered by the Department of Assistive and Rehabilitative Services (DARS), Division for Blind Services (DBS) to assess, plan, develop, and provide vocational rehabilitation services for eligible persons with visual impairments, consistent with their strengths, resources, priorities, concerns, abilities, and capabilities, so that these persons may prepare for and engage in gainful employment. / DIVISION 1 PROGRAM AND SUBCHAPTER PURPOSE
RULE §856.1 Purpose
The Vocational Rehabilitation Services Program is a joint state- and federal-funded program administered by the Texas Department of Assistive and Rehabilitative Services (DARS), Division for Rehabilitation Services (DRS) to assess, plan, develop, and provide vocational rehabilitation services for eligible persons with disabilities, consistent with their strengths, resources, priorities, concerns, abilities, and capabilities, so that these persons may prepare for and engage in gainful employment. / Retain§856.1 and make the following changes:
  • Replace the agency and division names with “Texas Workforce Commission, Vocational Rehabilitation Division (VRD)”; and
  • Add a sentence specifying the new division as the single designated state unit.

§854.21 Legal Authority
The following statutes and regulations authorize or require the rules in this subchapter:
(1) The Texas Human Resources Code §91.021(d); (2) The Texas Human Resources Code §117;
(3) The Rehabilitation Act of 1973 as amended (29 United States Code §§701 et seq);
(4) Implementing federal regulations (34 Code of Federal Regulations, Part 361); and
(5) The DBS state plan submitted to and approved by the federal government, which is effective in all political subdivisions of the state. / §856.2 Legal Authority
The following statutes and regulations authorize or require the rules in this subchapter:
(1) The Texas Human Resources Code §111.053.
(2) The Texas Human Resources Code, Chapter 117.
(3) The Rehabilitation Act of 1973 as amended (29 USC §§701 et seq.), referred to as "the Act."
(4) Implementing federal regulations (34 CFR §§361.51 et seq., as amended).
(5) The DRS state plan submitted to and approved by the federal government, which is effective in all political subdivisions of the state. / Retain§856.2 and update the law and regulation references. Specifically, replace the Human Resources Code references in §856.2(1) and (2) with references to Texas Labor Code §301.0015 and Chapter 352. Also update §856.2(5) to refer to the VR portion of the WIOA Combined State Plan.
§854.22 Definitions
The following words and terms, when used in this subchapter, have the following meanings, unless the context clearly indicates otherwise.
(1) Applicant--A person who has submitted an application to DBS for vocational rehabilitation services.
(2) Blind (person who is)--A person whose visual acuity with best correction is 20/200 or less in the better eye, or a person with a limitation in the field of vision such that the widest diameter of the visual field subtends an angle no greater than 20 degrees, which means a visual field of no greater than 20 degrees in the better eye.
(3) Consumer--An individual with a disability who has applied for, or who is receiving vocational rehabilitation services.
(4) Visual impairment--A visual acuity, with best correction, of 20/70 or less in the better eye; or a visual field of 30 degrees or less in the better eye; or a combination of both. / §856.3 Definitions
The following words and terms, when used in this subchapter, have the following meanings, unless the context clearly indicates otherwise.
(1) Applicant--An individual who applies to DRS for vocational rehabilitation services.
(2) Consumer--An individual with a disability who has applied for, or is receiving vocational rehabilitation services. / Retain§856.3 and make the following changes:
  • Movethe definition for “Blind (person who is)” from §854.22(2) to §856.3;
  • Add the definition for “Visual impairment” from §854.22(4) to §856.3;
  • Update the division name;
  • Replace the word “consumer” with “customer”; and
  • Add a reference to the definitions in state law and federal regulations, such as “In addition to the definitions contained in Texas Labor Code §352.001 and 34 CFR §361.5 relating to vocational rehabilitation, the following words and terms when used in this chapter shall have the following meanings, unless the context clearly indicates otherwise.”

§856.4 Statewideness
The state plan for vocational rehabilitation services is effective in all political subdivisions of the state. / Retain§856.4 as is.
§856.5 Consultation Regarding the Administration of the State Plan
(a) The state plan must ensure that, in connection with developing and administering general policy in the administration of the state plan, DRS seeks and takes into account the views of:
(1) individuals who receive vocational rehabilitation services or, as appropriate, the individuals' representatives;
(2) personnel working in the field of vocational rehabilitation;
(3) providers of vocational rehabilitation services;
(4) the Client Assistance Program (CAP) director; and
(5) the Rehabilitation Council of Texas.
(b) The state plan must specifically describe the manner in which DRS will take into account the views regarding state policy and administration of the state plan that are expressed in the consumer satisfaction surveys conducted by the Rehabilitation Council of Texas under 34 CFR §361.17(h)(4) or by DRS. / Retain§856.5 and make the following changes:
  • Update the division name;
  • Update the federal regulation reference; and
  • Replace the word “consumer” with “customer.”

DIVISION 2 ELIGIBILITY
§854.23 Application
(a) A person is considered to have submitted an application when the person or the person's representative, as appropriate:
(1) has completed and signed the DBS application form or has otherwise requested services;
(2) has provided information necessary to initiate an assessment to determine eligibility and priority for services; and
(3) is available to complete the assessment process.
(b) Persons residing in institutions, such as state hospitals or prisons, may apply for services when their release is expected within 60 days. / Add the language in §854.23(a) to Chapter 856 and update the division name.The language in §854.23(b) should not be incorporated into Chapter 856 because it is not allowable under federal regulations. According to 34 CFR §361.42, anindividualmust be available so that VR staff can complete an assessment for eligibility within 60 days of the individualapplying for services.
§854.24 Eligibility
(a) To establish an applicant's eligibility for vocational rehabilitation services, DBS must:
(1) determine that the applicant has a visual impairment;
(2) determine that the applicant's visual impairment constitutes or results in a substantial impediment to employment for the applicant;
(3) establish that the applicant requires vocational rehabilitation (VR) services to prepare for, enter, engage in, or retain gainful employment consistent with the applicant's strengths, resources, priorities, concerns, abilities, capabilities, interests, and informed choice; and
(4) presume that the applicant is capable of achieving an employment outcome, unless there is a demonstration by clear and convincing evidence that the applicant is incapable of achieving an employment outcome because of the severity of the applicant's disability.
(b) When DBS has received appropriate evidence that the applicant is eligible for benefits under Titles II or XVI of the Social Security Act because of blindness and the applicant has indicated a willingness to work, DBS presumes that the applicant meets the basic eligibility requirements in subsection (a) of this section. / DIVISION 2 ELIGIBILITY
RULE §856.20 Eligibility
(a) DRS bases eligibility for vocational rehabilitation (VR) services on the following requirements only.
(b) Within 60 days of application, DRS must:
(1) determine that the applicant has a physical or mental impairment;
(2) determine that the impairment constitutes or results in a substantial impediment to employment for the applicant;
(3) establish that the applicant requires VR services to prepare for, enter, engage in, or retain gainful employment consistent with the applicant's strengths, resources, priorities, concerns, abilities, capabilities, interests, and informed choice; and
(4) presume that the applicant is capable of achieving an employment outcome, unless there is a demonstration by clear and convincing evidence in extended evaluation that the applicant is incapable of achieving an employment outcome because of the severity of the applicant's disability.
(c) Social Security disability recipients and beneficiaries are presumed eligible for VR services, unless there is a demonstration by clear and convincing evidence in extended evaluation that the applicant is incapable of achieving an employment outcome because of the severity of the applicant's disability. / Retain§856.20 andmake the following changes:
  • Update the division name; and
  • Replace the term “extended evaluation” with “trial work” to be consistent with changes in WIOA and federal regulations.

§854.25 Prohibited Factors
(a) DBS does not impose, as part of determining eligibility under this subchapter, a duration-of-residence requirement that excludes from services any applicant who is present in the state.
(b) In determining eligibility under this subchapter, DBS ensures that:
(1) No applicant or group of applicants is excluded or found ineligible solely on the basis of the type of disability; and
(2) The eligibility requirements are applied without regard to the:
(A) age, gender, race, color, or national origin of the applicant;
(B) type of expected employment outcome;
(C) source of referral for vocational rehabilitation services; and
(D) particular service needs or anticipated cost of services required by an applicant or the income level of an applicant or applicant's family. / §856.21 Prohibited Factors
(a) DRS does not impose, as part of determining eligibility under this subchapter, a duration-of-residence requirement that excludes from services any applicant who is present in the state.
(b) In determining eligibility under this subchapter, DRS ensures that:
(1) No applicant or group of applicants is excluded or found ineligible solely on the basis of the type of disability; and
(2) The eligibility requirements are applied without regard to the:
(A) age, gender, race, color, or national origin of the applicant;
(B) type of expected employment outcome;
(C) source of referral for vocational rehabilitation services; and
(D) particular service needs or anticipated cost of services required by an applicant or the income level of an applicant or applicant's family. / Retain§856.21 and update the division name.
§856.22 Extended Evaluation
(a) Extended evaluation is used only to determine whether an applicant with a significant disability is capable of achieving an employment outcome.
(b) DRS provides only the vocational rehabilitation services necessary to determine if the applicant is capable of achieving an employment outcome. Services are provided in the most integrated setting possible, consistent with the informed choice of the applicant.
(c) DRS may terminate extended evaluation services at any time when:
(1) there is sufficient evidence to conclude that the applicant can achieve an employment outcome;
(2) the applicant is found ineligible for any additional vocational rehabilitation services on the basis of clear and convincing evidence that the applicant cannot be expected to benefit in terms of an employment outcome from vocational rehabilitation services; or
(3) the applicant is unavailable for services.
(d) When an applicant is determined ineligible for vocational rehabilitation services after extended evaluation, DRS conducts a periodic review at least annually of the ineligibility decision in which the applicant is afforded a clear opportunity for full consultation in the reconsideration of the decision. A periodic review is not required when the applicant has refused services, the applicant has refused a periodic review, the applicant is no longer present in the state, the applicant's whereabouts are unknown, or the applicant's medical condition is rapidly progressive or terminal. / Retain§856.22 and make the following changes:
  • Update the division name; and
  • Replace the term “extended evaluation” with “trial work” to be consistent with changes in WIOA and federal regulations.

§854.26 Eligibility Determination Time Frame
(a) Eligibility or ineligibility must be determined no later than 60 days after the applicant, or the applicant's representative, as appropriate, has signed and submitted an application for vocational rehabilitation services in accordance with provisions of §106.307 of this subchapter (relating to Application).
(b) Exceptions to the 60-day time frame for determining eligibility or ineligibility may occur only when:
(1) DBS notifies the applicant that unforeseen circumstances beyond the control of DBS preclude it from completing the determination in 60 days; and
(2) the applicant, or the applicant's representative, as appropriate, agrees to a specific extension of time; or
(3) DBS is exploring an applicant's abilities, capabilities, and capacity to perform in work situations.
(c) Eligibility must be determined before applying Division 6 of this subchapter, if appropriate (relating to Methods of Administration of Vocational Rehabilitation) and Division 4 of this subchapter (relating to Consumer Participation). / Add the language in §854.26 to Chapter 856 and update the division name and rule references.
§854.27 Determination of Ineligibility
(a) If an individual who applies for services is determined not to be eligible for the services or if an eligible individual receiving services under an individualized plan for employment is determined to be no longer eligible for the services then:
(1) DBS must make a determination of ineligibility only after providing an opportunity for full consultation with the individual, or as appropriate, with the individual's representative.
(2) DBS must inform the individual in writing of the ineligibility determination. The written determination must be supplemented by special modes of communication consistent with the informed choice of the individual, if necessary, and must include the reasons for the determination, the requirements under this chapter, and the means by which the individual may express and seek remedy for any dissatisfaction, including the procedures for review of a determination by the counselor.
(3) DBSshall provide the individual with a description of services available from the client assistance program established under 34 CFR Part 370 and information on how to contact that program.
(b) DBS reviews any ineligibility determination based on a finding that the individual is incapable of achieving an employment outcome. The review must occur within 12 months, and annually thereafter if requested by the individual or the individual's representative, unless the individual has refused the review, the individual is no longer present in Texas, the individual's whereabouts are unknown, or the individual's medical condition is rapidly progressive or terminal. / §856.23 Determination of Ineligibility
When an applicant is determined ineligible for vocational rehabilitation services or a consumer receiving services under an individualized plan of employment (IPE) is no longer eligible for services, DRS must:
(1) make the determination only after providing an opportunity for full consultation with the person or, as appropriate, the person's representative;
(2) inform the person in writing of the ineligibility determination. The written determination must be supplemented as necessary by other appropriate modes of communication consistent with the informed choice of the person and must include the reasons for that determination and the means by which the person may express and seek remedy for any dissatisfaction, including the procedures for review of a determination by the rehabilitation counselor;
(3) provide the person with a description of services available from the Client Assistance Program established under 34 CFR Part 370 and information on how to contact that program;
(4) refer the person to:
(A) other programs that are part of the One-Stop service delivery system under the Workforce Investment Act that can address the person's training or employment-related needs; or
(B) local extended employment providers if the ineligibility determination is based on a finding that the person is incapable of achieving an employment outcome; and
(5) review within 12 months and annually thereafter, if requested by the person or, if appropriate, by the person's representative, any ineligibility determination that is based on a finding that the person is incapable of achieving an employment outcome. This review need not be conducted in situations where the person has refused it, the person is no longer present in the state, the person's whereabouts are unknown, or the person's medical condition is rapidly progressive. / Retain§856.23 andmake the following changes:
  • Update the division name;
  • Update the federal law and regulation references; and
  • Replace the word “consumer” with “customer.”

§854.28 Case Closure
DBS closes a case when the consumer's rehabilitation plan has been completed, and the consumer has achieved and maintained continuous employment commensurate with the established employment goal for a minimum of 90 days. DBS closes the case sooner if:
(1) DBS is unable to locate or contact the person;
(2) the person's disability is so severely limiting that there is little chance the person can be vocationally rehabilitated or the person's medical condition is expected to progress to such a severely limiting degree in a fairly short period of time that rehabilitation services will be of little or no help;
(3) the person has refused services or further services;
(4) the person has died;
(5) the person has been institutionalized;
(6) the person has been determined to have no disabling condition;
(7) the person has refused to cooperate with DBS;
(8) transportation is not feasible or available;
(9) the person has been determined to have no impediment to employment;
(10) extended services for supported employment are not available;
(11) the person has chosen extended employment (for example, sheltered workshop); or
(12) the person's case has been transferred to another agency. / §856.24 Case Closure
(a) DRS closes a case when the consumer's rehabilitation plan has been completed and the consumer has achieved and maintained continuous employment commensurate with the established employment goal for a minimum of 90 days. DRS closes the case sooner if: