Specific VR Program Requirements

Background

The concept of informed choice in the VR process has been with us for 30 years and is foundational to person-centered service delivery. Nevertheless, informed choice is a concept that many in the VR program have difficulty fully understanding and operationalizing.

The Rehabilitation Act of 1973, as amended, makes it clear in its policy statement that all programs, projects, and activities funded under the Rehabilitation Act, including the VR program under Title I, must be "carried out in a manner consistent with the principles of respect for individual dignity, personal responsibility, self-determination, and pursuit of meaningful careers, based on informed choice, of individuals with disabilities" (section 2(c)(1) of the Rehabilitation Act). The Rehabilitation Act Amendments of 1992 introduced the principle of “informed choice” into the statute and provided individuals with disabilities expanded opportunities for increased involvement in the direction of their VR programming. The Rehabilitation Act Amendments of 1998 strengthened the previous requirements related to informed choice and introduced additional requirements that expanded opportunities for increased participation of individuals with disabilities in developing and implementing their VR programs. This policy is reinforced in section 100(a)(3)(C) of the Rehabilitation Act which states that the State VR program must be carried out in a manner consistent with the following principle: “Individuals who are applicants for such programs or eligible to participate in such programs must be active and full partners in the VR process, making meaningful and informed choices-- (i) during assessments for determining eligibility and VR needs; and (ii) in the selection of employment outcomes for individuals, services needed to achieve the outcomes, entities providing such services, and the methods used to secure such services.”

Specific Regulatory Requirements:

The requirements for informed choice can be found in 34 C.F.R. §361.52 these provisions reflect statutory language in Section 102(d) of the Rehabilitation Act.

More specifically, 34 C.F.R. § 361.52(a) reiterates the general requirements that the VR agency must provide information and support services needed by applicants for and recipients of VR services in exercising informed choice throughout the rehabilitation process.

Further, 34 C.F.R. § 361.52(b) explains that the VR agency, in consultation with its State Rehabilitation Council, if it has a Council, must develop and implement written policies and procedures that enable an applicant or recipient of services to exercise informed choice throughout the VR process. At a minimum, these policies and procedures must provide for the following:

• Informing each applicant and recipient of services (including students with disabilities and youth with disabilities) about the availability of and opportunities to exercise informed choice throughout the VR process. Such information must be provided using appropriate modes of communication to meet the specific needs of the individual with disabilities. Individuals with cognitive or other disabilities who require assistance in exercising informed choice must also be informed about the availability of support services to assist them in their decision-making process;
• Assisting applicants and recipients of services in exercising informed choice in decisions related to the provision of assessment services;
• Developing and implementing flexible procurement policies and methods that facilitate the provision of VR services and that afford recipients of services meaningful choices among the methods used to procure VR services;
• Assisting eligible individuals or, as appropriate, the individuals' representatives, in acquiring information that enables them to exercise informed choice in the development of their individualized plans for employment (IPE) with respect to the selection of the—
  1. Employment outcome;
  2. Specific VR services needed to achieve the employment outcome;
  3. Entity that will provide the services;
  4. Employment setting and the settings in which the services will be provided; and
  5. Methods available for procuring the services.

Requirements for the types of information that must be provided regarding services and service providers are found in 34 C.F.R. § 361.52(c). In assisting an applicant and eligible individual in exercising informed choice during the assessment process and during the development of the IPE, the VR agency must either provide the individual or the individual's representative or assist the individual or the individual's representative in acquiring, the information necessary to make an informed choice about the specific VR services and the providers of those services that are needed to achieve the individual's employment outcome. This information must include, at a minimum, information relating to the following:

• the cost, accessibility, and duration of potential services;
• Consumer satisfaction with those services to the extent that such information is available;
• the qualifications of potential service providers;
• the types of services offered by the potential providers;
• the degree to which services are provided in integrated settings; and
• the outcomes achieved by individuals working with service providers, to the extent that such information is available.

In providing or assisting the individual or the individual's representative in acquiring the information described above, the VR agency may use, but is not limited to, the following methods or sources of information described in 34 C.F.R. § 361.52(d)

• Lists of services and service providers.
• Periodic consumer satisfaction surveys and reports.
• Referrals to other consumers, consumer groups, or disability advisory councils qualified to discuss the services or service providers.
• Relevant accreditation, certification, or other information relating to the qualifications of service providers.
• Opportunities for individuals to visit or experience various work and service provider settings.

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The Roles of the Individual with Disabilities and the VR Counselor

In RSA PD-01-03, dated January 17, 2001, RSA described how the individual with disabilities, the VR counselor, and the VR agency each play an important role in implementing the requirements for informed choice. This information is as relevant today as it was 20 years ago. The VR counselor is the facilitator of this rather complex decision-making process in which the individual with disabilities engages, with the assistance of their representative, if appropriate.

This decision-making process begins with the individual’s engagement in the assessment to determine their eligibility and their VR needs. It continues with the development of their IPE. Options for developing the IPE, including options for the individual to develop all or part of the IPE with or without assistance, can be found in 34 C.F.R. § 361.45(c)(1). Specifically, the individual exercises informed choice in the selection of an employment outcome as well as the selection of the services the individual needs to achieve that outcome. The individual also needs to decide on the settings for such services and the providers they wish to use for such services.

The counselor describes the range of employment outcomes and service options available to the individual during each step of the process, or to the extent possible, the opportunity to create new options that will meet the individual’s specific rehabilitation needs. It is important that the counselor provide the individual with sufficient information about the consequences of various options so that the individual can fairly evaluate these options.

The counselor must then guide the individual in evaluating the information and in making decisions among the various options, or to the extent possible, must provide the individual the opportunity to develop such skills or support and assistance in carrying out these functions. The counselor contributes their knowledge of the VR process, their experience with guiding other individuals with disabilities through the decision-making process, their knowledge of resources available to the individual, and their familiarity with labor market information. The upshot of the informed choice process is to enable the individual to make decisions in ways that reflect their strengths, resources, priorities, concerns, abilities, capabilities, and interests. Finally, the individual must take personal responsibility, to the extent possible, for implementing their chosen options.

Another helpful resource for counselors is RSA’s TAC-98-01, dated November 3, 1997, which describes assisting individuals with cognitive disabilities in exercising their right to informed choice. Again, this TAC is somewhat dated in the terminology used, but the concepts are sound and remain relevant. Specifically, this TAC provides information and strategies for:

• improving the skills needed by the individual to exercise choice;
• providing support and assistance through other individuals;
• simplifying information; and
• using multiple modes of communication and repetition.

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The Role of the VR Agency

PD-01-03 goes on to explain that the role of the VR agency is to administer the VR program in a manner that supports the joint efforts of the individual and the VR counselor. Agencies can provide such support in a variety of ways, which include but are not limited to those listed below:

• Consistent with 34 C.F.R. § 361.50(a), the VR agency must develop and maintain written policies covering the nature and scope of each of the VR services specified in §361.48 and the criteria under which each service is provided. The policies must ensure that the provision of services is based on the rehabilitation needs of each individual as identified in that individual's IPE and is consistent with the individual's informed choice. The written policies may not establish any arbitrary limits on the nature and scope of VR services to be provided to the individual to achieve an employment outcome. Exceptions to service policies must be provided in order to meet specific disability-related and other unique needs of the individual.
• In developing and implementing their service policies, VR agencies support informed choice by implementing policies and procedures that provide the maximum opportunity for individuals to exercise informed choice, for the VR counselor to support individuals in that effort, and for the development of employment and service options that meet a wide range of individual needs.
• VR agencies are responsible for facilitating the development of information resources, tools, and support services needed by individuals and counselors to fully implement informed choice. Agencies need to provide the information in accessible formats or modes of communication that individuals can understand.
• The VR agency also has a responsibility to develop or make available a variety of resources to assist individuals in planning, problem-solving, and building decision-making skills. These are skills that have not traditionally been emphasized by agencies.
• Working with State procurement staff and other relevant agencies, the VR agency should seek maximum flexibility in procurement procedures for both the VR program and its participants. The VR agency should assure that its policies and procedures support an individual's ability to exercise informed choice so that the agency's policies and procedures do not result in the pre-selection of employment outcomes, services, and service providers for VR participants. The capacity for resource development can be used to increase the employment and training options that are available for participants and to support the development of service providers willing to negotiate with VR participants about individualized services.
• Providing training about the implementation of informed choice to VR counselors and other service providers who interact with participants helps to assure consistent practices and to disseminate information about innovations.

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Balancing Informed Choice with Other VR Agency Responsibilities

The policies developed by the VR agency must also ensure that the availability and scope of informed choice are consistent with all other obligations of the VR agency under 34 C.F.R. part 361 and with the Uniform Guidance in 2 C.F.R. Part 200. This means that informed choice is not unfettered, but rather, it is counterbalanced by other requirements of the statute and regulations. Below are some regulatory requirements that the agency must consider as it works to increase the informed choice provided to individuals with disabilities:

• in 34 C.F.R. § 361.12, the VR agency must assure that it employs methods of administration found necessary by the Department of Education for the proper and efficient administration of the State Plan and for carrying out all functions for which the State is responsible under the plan and 34 C.F.R. part 361. These methods must include procedures to ensure accurate data collection and financial accountability.
• A VR agency must establish and maintain written policies to govern the rates of payment for all purchased VR services (34 C.F.R. § 361.50(c)). The VR agency must maintain effective internal control over rate-setting VR policies to provide reasonable assurance that the agency is managing the Federal award in compliance with Federal statutes, regulations, and the terms and conditions of the award.
• The VR agency must promulgate service policies that are consistent with the requirements in 34 C.F.R. §361.53 on comparable services and benefits and may implement requirements for determining the financial participation of individuals with disabilities in the cost of VR services in accordance with 34 C.F.R. § 361.54. These requirements allow the VR agency to contain costs as long as the policies are implemented fairly and consistently.
• In accordance with the Uniform Guidance in 2 C.F.R. § 200.303, among other things, a non-Federal entity must establish and maintain effective internal control over the Federal award that provides reasonable assurance that the non-Federal entity is managing the Federal award in compliance with Federal statutes, regulations, and the terms and conditions of the Federal award. These internal controls should be in compliance with guidance in Standards for Internal Control in the Federal Government issued by the Comptroller General of the United States and the Internal Control Integrated Framework, issued by the Committee of Sponsoring Organizations of the Treadway Commission (COSO);
• Furthermore, provisions at 2 C.F.R. § 200.302(b)(7) require that the financial management system of each non-Federal agency must provide for written policies and procedures for determining the allowability of costs in accordance with Federal cost principles and the terms and conditions of the Federal award.

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Transition services may be provided or arranged by Vocational Rehabilitation (VR) agencies and are defined in 34 C.F.R. § 361.5(c)(55). They include a coordinated set of activities for either students or youth with disabilities. They are designed within an outcome-oriented process that promotes movement from school to post-school activities, including postsecondary education, vocational training, competitive integrated employment, supported employment, continuing and adult education, adult services, independent living, or community participation. They are based upon the individual student's or youth's needs, taking into account the student's or youth's preferences and interests, and involve outreach to and engagement of the parents, as appropriate. Such activities may include:

• instruction,
• community experiences,
• the development of employment and other post-school adult living objectives, and
• acquisition of daily living skills and functional vocational evaluation, if appropriate.

VR can provide transition services to an eligible student or youth with a disability in accordance with an approved IPE for the purpose of promoting or facilitating the achievement of an employment outcome, or a projected post-school employment outcome.

VR Transition Services are part of the continuum of services that the VR program can provide. This continuum begins with pre-employment transition services, which represent the earliest set of services that are only available to students with disabilities, regardless of whether or not they have applied for or been determined eligible for VR services. Pre-employment transition services are described in 34 C.F.R. § 361.48(a), and include any of five required pre-employment transition services activities (which are provided to students according to their individual needs), coordination activities, and authorized activities.

Transition services are the next set of services along the continuum and are available to students and youth with disabilities who have applied for and been determined eligible for the VR program, and such services are included on their IPE. These outcome-oriented transition services are designed to help further develop career interests through post-secondary education, training, employment acquisition, retention, and follow-up.

It is also important to understand the distinction between VR transition services and Group Transition Services that may be provided to groups of students or youth in accordance with 34 CFR 361.49 (a)(7). Unlike VR transition services, these group transition services are not individualized and benefit a group of students or youth. Students and youth are not required to apply for or be determined eligible to participate in these generalized group services, which can include activities such as group tours, employer visits, career fairs, etc. These group transition services are also not considered pre-employment transition services.

Understanding the distinction between these three sets of services, who can participate in them, and what is provided is very important. The following graphic, provided by NTACT:C, is offered to assist in understanding this distinction.  Click the link to view the details.

Pre-Employment Transition Services (34 CFR § 361.48(a)) • Only for students with disabilities in a recognized educational program • VR application and IPE are not required. • The 5 required Pre-ETS services can be provided in a group setting or individually. Individualized Transition Services (34 CFR § 361.48(b)(18)) • For students and youth with disabilities • VR application and approved IPE are required. • Any allowable VR service, including pre-employment transition services, can be provided, such as job coaching, job placement, transportation, etc., under an IPE Group Transition Services (34 CFR § 361.49(a)(7)) • For groups of students and youth with disabilities • VR application and IPE are not required. • Services are not individualized but benefit a group. Participation in the VR program is not required. Services may include group tours, employer visits, career fairs, etc.

To promote the successful transition of students with disabilities, the VR agency must collaborate with the state educational agency (SEA) and the local educational agencies (LEAs). The VR agency and the SEA must develop a formal interagency agreement, the requirements for which are outlined in 34 C.F.R. § 361.22. At a minimum, these agreements must describe:

• consultation and technical assistance by the VR agency to assist educational officials in planning for the transition of students with disabilities;
• joint transition planning involving education and VR staff to support the implementation of the student’s individualized education program (IEP);
• the roles and responsibilities, including financial responsibilities, of the education agency and the VR agency, including provisions for determining State lead agencies and qualified personnel responsible for transition services and pre-employment transition services;
• procedures for outreach to and identification of students with disabilities who are in need of transition services and pre-employment transition services;
• coordination necessary to satisfy documentation requirements set forth in 34 CFR part 397 with regard to students and youth with disabilities who are seeking subminimum wage employment.

Outreach to students with disabilities must occur as early as possible during the transition planning process and must include, at a minimum, a description of the purpose of the VR program, eligibility requirements, application procedures, and scope of services that may be provided to eligible individuals. In addition, an IPE must be developed in accordance with 34 C.F.R. § 361.45 as early as possible during the transition planning process and not later than the time a student with a disability determined to be eligible for VR services leaves the school setting.

Resources:

Dear Director Letter - Formal Interagency Agreements Between State VR Agencies and SEAs (7.15.2019): transmits a review instrument for the formal interagency agreement between SEAs and VR agencies developed by the Office of Special Education and Rehabilitative Services.

A Transition Guide to Postsecondary Education and Employment for Students and Youth with Disabilities, revised August 2020: OSERS updated the Guide to advance our efforts in ensuring that all students and youth with disabilities are equipped with the skills and knowledge to achieve their post-school and career goals.

Notice Of Interpretation (NOI) guidance issued in February of 2020 and Final in March of 2022.

The National Technical Assistance Center on Transition: The Collaborative is a technical assistance center jointly funded by the Rehabilitation Services Administration (RSA) and the Office of Special Education Programs (OSEP). Their website includes a wide variety of technical assistance resources and training materials that will be helpful to you in providing pre-employment transition services for students with disabilities as well as transition services for students and youth with disabilities. The following are among the more recently issued resources:

Time Allocation Guide for Pre-Employment Transition Services

Policy Guide for Pre-Employment Transition Services for Students with Disabilities

Pre-Employment Transition Services: Set Aside Determination Guide

Coming Soon

Competitive Integrated Employment is the foundation of the Workforce Innovation and Opportunity Act (WIOA) and regulations. It is the common theme in all of the WINTAC topical areas, as well as the work of other technical assistance centers. Successful competitive integrated employment outcomes for people with disabilities correspond with effective VR engagement with a wide range of businesses and workforce development partners.

WIOA and final regulations emphasize the need for VR agencies to increase strategies for successful competitive integrated employment including Supported Employment (SE) and Customized Employment (CE) for those individuals with the most significant disabilities.

WIOA mandates services to business as a customer. This represents a shift in thinking for many state VR agencies whose sole mission has been to provide individualized services for people with disabilities in preparation for entry into the workforce. This toolkit will offer resources and training modules that demonstrate the value of serving both customers.

Basic Definitions

Here are the basics in understanding the mandated changes in WIOA and the regulations.

1. "Competitive, integrated employment" is defined as work that:
   1. Is performed on a full-time or part-time basis (including self-employment) and for which an individual is compensated at a rate that -
      1. Is not less than the higher of the rate specified in section 6(a)(1) of the Fair Labor Standards Act of 1938 (29 U.S.C. 206(a)(1)) or the rate required under the applicable State or local minimum wage law for the place of employment;
      2. Is not less than the customary rate paid by the employer for the same or similar work performed by other employees who are not individuals with disabilities and who are similarly situated in similar occupations by the same employer and who have similar training, experience, and skills; and
      3. In the case of an individual who is self-employed, yields an income that is comparable to the income received by other individuals who are not individuals with disabilities and who are self-employed in similar occupations or on similar tasks and who have similar training, experience, and skills; and
      4. Is eligible for the level of benefits provided to other employees; and
2. Is at a location --
   1. Typically found in the community; and
   2. Where the employee with a disability interacts for the purpose of performing the duties of the position with other employees within the particular work unit and the entire work site, and, as appropriate to the work performed, other persons (e.g., customers and vendors), who are not individuals with disabilities (not including supervisory personnel or individuals who are providing services to such employee) to the same extent that employees who are not individuals with disabilities and who are in comparable positions interact with these persons; and
3. Presents, as appropriate, opportunities for advancement that are similar to those for other employees who are not individuals with disabilities and who have similar positions.
   (Authority: Sections 7(5) and 12(c) of the Rehabilitation Act of 1973, as amended; 29 U.S.C. 705(5) and 709(c)) --- (consider referencing RSA’s recent slides on their website from recent WIOA conferences)

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2. "Customized Employment" (CE) is defined in final WIOA regs, Federal Register, 361.5 (c) (11), as:

   Competitive integrated employment, for an individual with a significant disability, that is:

   1. Based on an individualized determination of the unique strengths, needs, and interests of the individual with a significant disability;
   2. Designed to meet the specific abilities of the individual with a significant disability and the business needs of the employer; and
   3. Carried out through flexible strategies, such as -
      1. Job exploration by the individual; and
      2. Working with an employer to facilitate placement, including -
         1. Customizing a job description based on current employer needs or on previously unidentified and unmet employer needs;
         2. Developing a set of job duties, a work schedule and job arrangement, and specifics of supervision (including performance evaluation and review), and determining a job location;
         3. Using a professional representative chosen by the individual, or if elected self-representation, to work with an employer to facilitate placement; and
         4. Providing services and supports at the job location.

    

   • The "Discussion Section" elaborates on CE as follows (WIOA, Federal Register):

     Customized employment is an alternative that enables individuals with disabilities and employers the opportunity to negotiate job tasks and/or reassign basic job duties to improve overall production in the workplace. For employers, customized employment allows an employer to examine its specific workforce needs and fulfill those needs with a well-matched employee. Customized employment services are included in the list of allowable vocational rehabilitation services in final §361.48(b). DSUs may expend their resources, including program funds, on supporting individuals in customized employment when appropriate…and must lead to competitive integrated employment.

     Note: Although CE is listed as part of Supported Employment under WIOA, CE is delineated as a separate set of tools and strategies to achieve competitive integrated employment

   • Specific tools and resources to assist in understanding and implementing CE service delivery including the Essential Elements of CE, Recommendations for CE Practices, the CE Delivery Checklist and our CE Orientation Webinar are available in this website under the CE Resources section

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3. Supported Employment definitions and clarifications

   Supported Employment definition:

   1. Supported employment means competitive integrated employment, including customized employment, or employment in an integrated work setting in which an individual with a most significant disability, including a youth with a most significant disability, is working on a short-term basis toward competitive integrated employment that is individualized, and customized, consistent with the unique strengths, abilities, interests, and informed choice of the individual, including with ongoing support services for individuals with the most significant disabilities -
      1. For whom competitive integrated employment has not historically occurred, or for whom competitive integrated employment has been interrupted or intermittent as a result of a significant disability; and
      2. Who, because of the nature and severity of their disabilities, need intensive supported employment services and extended services after the transition from support provided by the designated State unit, in order to perform this work.
   2. For purposes of this part, an individual with a most significant disability, whose supported employment in an integrated setting does not satisfy the criteria of competitive integrated employment, as defined in paragraph (c)(9) of this section is considered to be working on a short-term basis toward competitive integrated employment so long as the individual can reasonably anticipate achieving competitive integrated employment -
      1. Within six months of achieving a supported employment outcome; or
      2. In limited circumstances, within a period not to exceed 12 months from the achievement of the supported employment outcome, if a longer period is necessary based on the needs of the individual, and the individual has demonstrated progress toward competitive earnings based on information contained in the service record.

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   Supported employment services means ongoing support services, including customized employment, and other appropriate services needed to support and maintain an individual with a most significant disability, including a youth with a most significant disability, in supported employment that are:

   3. Organized and made available, singly or in combination, in such a way as to assist an eligible individual to achieve competitive integrated employment;
   4. Based on a determination of the needs of an eligible individual, as specified in an individualized plan for employment;
   5. Provided by the designated State unit for a period of time not to exceed 24 months, unless under special circumstances the eligible individual and the rehabilitation counselor jointly agree to extend the time to achieve the employment outcome identified in the individualized plan for employment; and
   6. Following transition, as post-employment services that are unavailable from an extended services provider and that are necessary to maintain or regain the job placement or advance in employment.

   NOTE: RSA recently clarified that SE funds can only be utilized for activities to support individuals once those individuals are placed on a Supported Employment worksite.

Supported employment services are also addresses under "Extended Services for Youth with Disabilities" as follows:

Supported employment service may be also be utilized as part of extended services for "youth with the most significant disabilities" for a period not to exceed four years or until such time as a youth reaches the age of 25 and no longer meets the definition of a "youth with a disability" per final §361.5(c)(58). Extended services means ongoing support services and other appropriate services that are needed to support and maintain an individual with a most significant disability in supported employment and that are provided by a State agency, a private nonprofit organization, employer, or any other appropriate resource, from funds other than funds received under this part and 34 CFR part 363 after an individual with a most significant disability ;has made the transition from support provided by the designated State unit. (Authority: Section 12(c) of the Act; 29 U.S.C. 709(c))

Specific tools and resources to assist in understanding and implementing Supported Employment (SE) including the SE Quality Features, Essential Elements of SE Design, SE Critical Policy and Definitions Elements, RSA guidance on SE and a variety of SE resources available from state VR agencies are under the SE Resources section of this website

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Randolph-Sheppard Vending Facility Program

What is the Randolph-Sheppard Vending Facility Program?

The Vending Facility program authorized by the Randolph-Sheppard Act provides persons who are blind with remunerative employment and self-support through the operation of vending facilities on Federal and other property. The program, enacted into law in 1936 and amended in 1954 and 1974, was intended to enhance employment opportunities for trained, licensed blind persons to operate facilities such as cafeterias, snack bars, and automatic vending machines on Federal property. The program priority has broadened in most states through state laws to include state, county, municipal, and private locations as well. Under the program, State Licensing Agencies (SLAs) recruit, train, license, and place individuals who are blind as operators of vending facilities located on Federal and other properties. The Act authorizes a blind individual licensed by the SLA to conduct specified activities in vending facilities through permits or contracts. The Randolph-Sheppard Act regulations can be found in 34 C.F.R. Part 395. Click this link to learn more about this program.

What are state licensing agencies?

An application for designation as a State Licensing Agency may only be submitted by the State VR agency providing VR services to the blind under an approved VR services portion of a WIOA Unified or Combined State Plan. SLAs under the Randolph-Sheppard Act are required annually to complete the Report of Vending Facility Program (RSA-15) that reports activities for the prior Federal Fiscal Year (FFY). The intent of the RSA-15 is to collect data on all vending facilities managed and operated by the SLA under the Act. 

How many vendors benefit from the program, and what do they earn?

According to an RSA report issued in December 2020, in FFY 2018, a total of 1,822 blind vendors operated 2,209 vending facilities located on Federal and other properties. The total earnings of all vendors were $127.4 million, and the national average net earning of vendors was $69,907. The total gross income for the program was $698.8 million.

How can I get more information about this program?

For more information on the Randolph-Sheppard Vending Facility Program, contact the RSA staff responsible for administering the program.