1. Purpose of DVR & Roles 2. Applying for DVR 3. Eligibility & DVR Wait List (OOS) 4. Plan for Employment (IPE) 5. DVR Services 6. Fiscal/Purchasing 7. Closing a DVR Case 8. Consumer Rights & Legal Info 9. Service Providers & Projects 10. Technical & General Info 11. Site Map 12. Chronological Policy Changes

Closing a DVR Case



Policy

Closure Too Severely Disabled to Benefit from VR Services

A consumer’s case cannot be closed from applicant status because the individual is too severely disabled to benefit due to Wisconsin DVR’s presumption that all applicants can benefit from VR services. If, however, at any other time in the case process it appears that the individual is too severely disabled to benefit from VR services, an IPE will be written or amended to assess the individual's ability to participate in and benefit from VR services. Trial temporary work (meeting the criteria for temporary work) is a required service for these plans (if trial temporary work is not available, alternate evaluation services must be provided in integrated and competitive settings and consistent with the individual's informed choice). Only after a variety of trial temporary work opportunities, over a sufficient period of time result in clear and convincing evidence that the individual is incapable of benefiting from vocational rehabilitation services in terms of an employment outcome, can the decision be made to close the case due to the severity of the individual's disability. No one assessment strategy alone can result in clear and convincing evidence.

Consumers who are closed because they are incapable of benefiting from VR services in terms of an employment outcome will be provided an opportunity for a review of that determination a year after case closure and, at any time thereafter, at the request of the consumer. The review will assess whether their condition may have changed and if reapplication for services is appropriate.

Closure Prior to Eligibility

A consumer's case shall be closed without an eligibility determination when the consumer declines to participate, refuses services, fails to cooperate, has died or is institutionalized. The case shall also be closed if the consumer is unavailable during an extended period to complete an assessment for determining eligibility, and the DVR has made multiple attempts using multiple methods, including the person’s preferred mode of contact, to contact the consumer or, as appropriate, the consumer's representative to encourage participation.

Closure Due to Ineligibility

The consumer or, if appropriate, the consumer's representative shall be provided an opportunity for a full consultation of an ineligibility decision before the consumer's case is closed due to ineligibility. Multiple attempts and multiple methods must be used to contact the consumer. The consumer shall also be offered referral services.

Closure after Eligibility Determination

A consumer's case shall be closed after eligibility when:

The consumer or, if appropriate, the consumer's representative shall be provided an opportunity to discuss the closure decision before closure. Multiple attempts and multiple methods, including the consumer’s preferred mode of contact, must be used to contact the consumer.

Closure after Achieving an Employment Outcome

A consumer has achieved an employment outcome only if the following requirements are met and documented.

At the time of closure, the individual is informed of the availability of post-employment services.

Work in a nonintegrated or sheltered setting (extended employment) or work for which there is no payment is not considered an employment outcome. Nonintegrated or sheltered employment means the individual:

  1. is normally paid on a piece rate basis,
  2. is doing the same type of job,
  3. is not generally afforded a benefits package offered other employees of the organization, and
  4. is supported by other resources, such as county funding.

Individuals employed by the program earning wages and benefits normally afforded a person engaged in an employment relationship are considered competitively employed in an integrated setting and, thus, a successful rehabilitation outcome.

Paid temporary work cannot be considered a “closure after rehabilitation” until 90 days of employment have been completed after the end of the temporary work period.

Closure after Achieving an Employment Outcome in Supported Employment

A consumer’s case shall be closed when the consumer is working in supported employment in a competitive and integrated work setting. For information on integrated and competitive work settings, see the Employment Outcome Guidance. There shall be confirmation of extended support services after case closure by another party identified in the plan for employment. Closure occurs no sooner than 90 days after transition to extended support services. Consumers must be compensated in accordance to Sec 14 (c) of the Fair Labor Standards Act.

Notification of Closure

A consumer whose case is closed for any reason, except death or no known address, shall be notified, in writing, of the case closure, the type of closure, the reasons for the closure, the right to appeal the closure decision and the process for appealing, including the availability of the Client Assistance Program to assist with an appeal. Qualified personnel shall offer a consumer an opportunity for full consultation of the case closure prior to the closure. Notification to the consumer or, as appropriate, to the consumer’s representative shall be supplemented, as necessary, by other appropriate modes of communication consistent with the informed choice of the consumer.

Annual Review of Consumers Working Under a Sub-Minimum Wage Certificate

If a consumer’s case is closed because he/she has been working under a sub-minimum wage certificate, an annual review shall be conducted each year for two years. A consumer or, if appropriate, the consumer’s representative may request additional reviews. The review is to determine the interests, priorities and needs of the consumer with respect to competitive employment or training for competitive employment. A consumer or, if appropriate, the consumer’s representative shall have input into the review and reevaluation and sign an acknowledgment. Maximum efforts will be made to assist these consumers in engaging in competitive employment. For additional information, refer to the Annual Review - Closed Working Under Sub-Minimum Wage Certificate Guidance.

Post-Employment Services

A consumer whose cases have been closed after achieving an employment outcome shall be provided additional services, if necessary, to maintain, regain or advance in employment consistent with consumer’s strengths, resources, priorities, concerns, abilities, capabilities and interests. For additional information refer to the Post-Employment guidance.

Related Information

Forms/Publications

Rehabilitation Act/Federal Regulations Comparison

Federal Regulations

Sec. 361.44 Closure without eligibility determination.

The designated State unit may not close an applicant's record of services prior to making an eligibility determination unless the applicant declines to participate in, or is unavailable to complete, an assessment for determining eligibility and priority for services, and the State unit has made a reasonable number of attempts to contact the applicant or, if appropriate, the applicant's representative to encourage the applicant's participation.

Sec. 361.43 Procedures for ineligibility determination.

If the State unit determines that an applicant is ineligible for vocational rehabilitation services or determines that an individual receiving services under an individualized plan for employment is no longer eligible for services, the State unit must--

(a) Make the determination only after providing an opportunity for full consultation with the individual or, as appropriate, with the individual's representative;

(b) Inform the individual in writing, supplemented as necessary by other appropriate modes of communication consistent with the informed choice of the individual, of the ineligibility determination, including the reasons for that determination, the requirements under this section, and the means by which the individual may express and seek remedy for any dissatisfaction, including the procedures for review of State unit personnel determinations in accordance with Sec. 361.57;

(c) Provide the individual with a description of services available from a client assistance program established under 34 CFR part 370 and information on how to contact that program;

(d) Refer the individual to other training or employment-related programs that are part of the One-Stop service delivery system under the Workforce Investment Act; and

(e) Review within 12 months and annually thereafter if requested by the individual or, if appropriate, by the individual's representative any ineligibility determination that is based on a finding that the individual is incapable of achieving an employment outcome. This review need not be conducted in situations in which the individual has refused it, the individual is no longer present in the State, the individual's whereabouts are unknown, or the individual's medical condition is rapidly progressive or terminal.

Sec. 361.56; Requirements for closing the record of services of an individual who has achieved an employment outcome.

The record of services of an individual who has achieved an employment outcome may be closed only if all of the following requirements are met:

(a) Employment outcome achieved. The individual has achieved the employment outcome that is described in the individual's IPE in accordance with Sec. 361.46(a)(1) and is--

(1) Consistent with the individual's strengths, resources, priorities, concerns, abilities, capabilities, interests, and informed

choice; and

(2) In the most integrated setting possible, consistent with the individual's informed choice.

(b) Employment outcome maintained. The individual has maintained the employment outcome for an appropriate period of time, but not less than 90 days, necessary to ensure the stability of the employment outcome, and the individual no longer needs vocational rehabilitation services.

(c) Satisfactory outcome. At the end of the appropriate period under paragraph (b) of this section, the individual and the qualified

rehabilitation counselor employed by the designated State unit consider the employment outcome to be satisfactory and agree that the individual is performing well in the employment.

(d) Post-employment services. The individual is informed through appropriate modes of communication of the availability of post-employment services.

(53) Supported employment means--

(i) Competitive employment in an integrated setting, or employment in integrated work settings in which individuals are working toward competitive employment, consistent with the strengths, resources, priorities, concerns, abilities, capabilities, interests, and informed choice of the individuals with ongoing support services for individuals with the most significant disabilities--

(A) For whom competitive employment has not traditionally occurred or for whom competitive employment has been interrupted or intermittent as a result of a significant disability; and

(B) Who, because of the nature and severity of their disabilities, need intensive supported employment services from the designated State unit and extended services after transition as described in paragraph (b)(20) of this section to perform this work; or

(ii) Transitional employment, as defined in paragraph (b)(54) of this section, for individuals with the most significant disabilities due to mental illness.

(54) Supported employment services means ongoing support services and other appropriate services needed to support and maintain an

individual with a most significant disability in supported employment that are provided by the designated State unit--

(i) For a period of time not to exceed 18 months, unless under special circumstances the eligible individual and the rehabilitation counselor or coordinator jointly agree to extend the time to achieve the employment outcome identified in the individualized plan for employment; and

(ii) 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.

(56) Transitional employment, as used in the definition of 'Supported employment,' means a series of temporary job placements in competitive work in integrated settings with ongoing support services for individuals with the most significant disabilities due to mental illness. In transitional employment, the provision of ongoing support services must include continuing sequential job placements until job permanency is achieved.

Sec. 361.57 Review of determinations made by designated State unit personnel.

(a) Procedures. The designated State unit must develop and implement procedures to ensure that an applicant or eligible individual who is dissatisfied with any determination made by personnel of the

designated State unit that affects the provision of vocational rehabilitation services may request, or, if appropriate, may request through the individual's representative, a timely review of that determination. The procedures must be in accordance with paragraphs (b) through (k) of this section:

(b) General requirements.

(1) Notification. Procedures established by the State unit under this section must provide an applicant or eligible individual or, as appropriate, the individual's representative notice of--

(i) The right to obtain review of State unit determinations that affect the provision of vocational rehabilitation services through an impartial due process hearing under paragraph (e) of this section;

(ii) The right to pursue mediation under paragraph (d) of this section with respect to determinations made by designated State unit personnel that affect the provision of vocational rehabilitation services to an applicant or eligible individual;

(iii) The names and addresses of individuals with whom requests for mediation or due process hearings may be filed;

(iv) The manner in which a mediator or impartial hearing officer may be selected consistent with the requirements of paragraphs (d) and (f) of this section; and

(v) The availability of the client assistance program, established under 34 CFR part 370, to assist the applicant or eligible individual during mediation sessions or impartial due process hearings.

(2) Timing. Notice described in paragraph (b)(1) of this section must be provided in writing--

(i) At the time the individual applies for vocational rehabilitation services under this part;

(ii) At the time the individual is assigned to a category in the State's order of selection, if the State has established an order of selection under Sec. 361.36;

(iii) At the time the IPE is developed; and

(iv) Whenever vocational rehabilitation services for an individual are reduced, suspended, or terminated.

Sec. 361.55 Annual review of individuals in extended employment or other employment under special certificate provisions of the Fair Labor Standards Act.

The State plan must assure that the designated State unit--

(a) Annually reviews and reevaluates the status of each individual with a disability served under the vocational rehabilitation program who has achieved an employment outcome either in an extended employment setting in a community rehabilitation program or in any other employment setting in which the individual is compensated in accordance with section 14(c) of the Fair Labor Standards Act for 2 years after the individual achieves the employment outcome (and thereafter if requested by the individual or, if appropriate, the individual's representative) to determine the interests, priorities, and needs of the individual with respect to competitive employment or training for competitive employment;

(b) Enables the individual or, if appropriate, the individual's representative to provide input into the review and reevaluation and documents that input in the record of services, consistent with

Sec. 361.47(a)(10), with the individual's or, as appropriate, the individual's representative's signed acknowledgment that the review and reevaluation have been conducted; and

(c) Makes maximum efforts, including identifying and providing vocational rehabilitation services, reasonable accommodations, and other necessary support services, to assist the individuals identified in paragraph (a) of this section in engaging in competitive employment as defined in Sec. 361.5(b)(11).

361.5(b)(42) Post-employment services

Means one or more of the services identified in Sec. 361.48 that are provided subsequent to the achievement of an employment outcome and that are necessary for an individual to maintain, regain, or advance in employment, consistent with the individual's strengths, resources, priorities, concerns, abilities, capabilities, interests, and informed choice.

Note to paragraph (b)(42): Post-employment services are intended to ensure that the employment outcome remains consistent with the individual's strengths, resources, priorities, concerns, abilities, capabilities, interests, and informed choice. These services are available to meet rehabilitation needs that do not require a complex and comprehensive provision of services and, thus, should be limited in scope and duration. If more comprehensive services are required, then a new rehabilitation effort should be considered. Post-employment services are to be provided under an amended individualized plan for employment; thus, a re-determination of eligibility is not required. The provision of post-employment services is subject to the same requirements in this part as the provision of any other vocational rehabilitation service. Post-employment services are available to assist an individual to maintain employment, e.g., the individual's employment is jeopardized because of conflicts with supervisors or co-workers, and the individual needs mental health services and counseling to maintain the employment; to regain employment, e.g., the individual's job is eliminated through reorganization and new placement services are needed; and to advance in employment, e.g., the employment is no longer consistent with the individual's strengths, resources, priorities, concerns, abilities, capabilities, interests, and informed choice.

Rehabilitation Act

Sec 102(a)

(5) Determination of ineligibility

If an individual who applies for services under this title is determined, based on the review of existing data and, to the extent necessary, the assessment activities described in section 7(2)(A)(ii), 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--

(A) the ineligibility determination involved shall be made only after providing an opportunity for full consultation with the individual or, as appropriate, the individual's representative;

(B) the individual or, as appropriate, the individual's representative, shall be informed in writing (supplemented as necessary by other appropriate modes of communication consistent with the informed choice of the individual) of the ineligibility determination, including--

(i) the reasons for the determination; and

(ii) a description of the means by which the individual may express, and seek a remedy for, any dissatisfaction with the determination, including the procedures for review by an impartial hearing officer under subsection (c);

(C) the individual shall be provided with a description of services available from the client assistance program under section 112 and information on how to contact that program; and

(D) any ineligibility determination that is based on a finding that the individual is incapable of benefiting in terms of an employment outcome shall be reviewed--

(i) within 12 months; and

(ii) thereafter, if such a review is requested by the individual or, if appropriate, by the individual's representative.

Section 102(c) (2) Notification

(A) Rights and assistance

The procedures shall provide that an applicant or an eligible individual or, as appropriate, the applicant's representative or individual's representative shall be notified of--

(i) the right to obtain review of determinations described in paragraph (1) in an impartial due process hearing under paragraph (5);

(ii) the right to pursue mediation with respect to the determinations under paragraph (4); and

(iii) the availability of assistance from the client assistance program under section 112.

(B) Timing

Such notification shall be provided in writing--

(i) at the time an individual applies for vocational rehabilitation services provided under this title;

(ii) at the time the individualized plan for employment for the individual is developed; and

(iii) upon reduction, suspension, or cessation of vocational rehabilitation services for the individual.

14 Annual review of individuals in extended employment or other employment under special certificate provisions of the fair labor standards act of 1938

The State plan shall provide for--

(A) an annual review and reevaluation of the status of each individual with a disability served under this title who has achieved an employment outcome either in an extended employment setting in a community rehabilitation program or any other employment under section 14(c) of the Fair Labor Standards Act (29 U.S.C. 214(c)) for 2 years after the achievement of the outcome (and thereafter if requested by the individual or, if appropriate, the individual's representative), to determine the interests, priorities, and needs of the individual with respect to competitive employment or training for competitive employment;

(B) input into the review and reevaluation, and a signed acknowledgment that such review and reevaluation have been conducted, by the individual with a disability, or, if appropriate, the individual's representative; and

(C) maximum efforts, including the identification and provision of vocational rehabilitation services, reasonable accommodations, and other necessary support services, to assist the individuals described in subparagraph (A) in engaging in competitive employment.

Sec. 103(a)(18) specific post-employment services necessary to assist an individual with a disability to, retain, regain, or advance in employment.

Frequently Asked Questions

Activating the headings using enter from the keyboard expands the answer text underneath the question, so it can be read.

1. If 60 days in a temp job or WE it turns into a perm job, can the 90 days start from the date of the temp job or WE?

[Opinion of DVR Policy Analyst] - The use of the phrase in the federal regs that employment needs to be maintained for 90 days before the case can be closed is misleading. What it really means is that the consumer has to have achieved his IPE employment goal and maintained it for 90 days. This usually means that all services have been completed, and the consumer is able to maintain his goal without additional services from DVR. Remember that all services on the IPE must be necessary for the consumer to achieve the IPE goal. So if work experience is a service on the IPE, one would think that the consumer has not achieved his goal until the work experience is completed. (Why was the work experience necessary in the first place?)

Given that he has not achieved his IPE goal until the completion of the work experience, you would need to wait an additional 90 days before closing the record - the maintaining his IPE employment goal for 90 days requirement.

Historically, we have used date of hire as the signal that the goal was achieved. But our IPEs are becoming more diverse. For example, often we work with people who are already working when they apply, i.e. farmers, or get hired before they receive their training, i.e. supported employment. In these situations, the completion of service or the end of training signals the achievement of the goal, not the hire.

In response to your question about when to close someone working through a temporary agency, I think the length of time you follow along with a person after they start working, would be a case by case decision. Bottom line is that closing a person working for a temporary agency is okay if it meets the consumer's needs and is consistent with the IPE objective.

These days many companies only bring on potential new employees through the temporary agency route. Both the employee and the temp agency know that if a person works out well, there is a good chance that the person will become a permanent employee. In that situation, after verifying the conditions of hire and the consumer's satisfaction with those conditions, you could justify closing the record as successfully rehabilitated 90 days from the date the person started working at the company through the temporary agency. This should be accomplished by consulting with the consumer prior to closure. (Reviewed: 06/2014)

2. Policy states customary wage is for the same employer. Can we use other sources or must it be employer verified?

Through discussion with management, we can use WorkNet, O*Net, Job Center, call employer and ask hypothetically what they pay for a certain position, etc. All of these would be appropriate as employers typically pay wages close to each other to keep their employees. We cannot use a vendor report. This is something that VR staff need to verify. (Reviewed: 06/2014)

3. Can a case be closed below minimum wage if they are working towards competitive employment?

This language has been discussed by DVR's Senior Leadership Team. For a case to be closed as rehabilitated the consumer must be earning at or above the minimum wage and receive at least the customary wage and benefit level paid to other individuals performing similar work for the same employer as well as the other closure criteria listed in the policy manual. (Reviewed: 06/2014)

4. Does a case need to be kept open for 90 days from the last purchase before it can be closed rehabilitated?

[Opinion of DVR Policy Analyst] - The file should remain open for a minimum of 90 days after the employment goal has been achieved and the consumer no longer needs rehabilitation services (services that are needed for the achievement of the IPE goal have been provided). If you provide a service that does not directly affect the stability/achievement of the employment goal e.g. work shoes, uniform, etc., during the 90 day follow along period, you do not have to start the 90 day clock over again.

Reminder: 90 days is the minimum follow along period. If additional time is needed to ensure that the consumer’s employment is stable, the follow along time should be extended. (Reviewed: 06/2014)

5. Can we take a 26 closure on a person who is working in a position under the "Title V" program?

No, we cannot take a 26 closures because they are considered training programs and do not meet our standards for an employment outcome. The Title V Community Service Employment Program is a federal job training program for older job seekers. Participants gain work experience through short-term subsidized employment and then make the transition to non-subsidized jobs. (Reviewed: 06/2014)

6. If a consumer is found eligible, and the consumer’s condition improves, do we find the consumer ineligible?

Wisconsin does not typically go back and find consumers ineligible unless the consumer shared fraudulent information when determined eligible for services.

For example, if a consumer’s condition improved because DVR provided restoration services that eliminated the barriers caused by the disability, we would still continue to provide services to assist the consumer in reaching the IPE goal. (Reviewed: 06/2014)

7. Can DVR open a case in post-employment more than once or need to reapply?

[Opinion of DVR Policy Analyst] - Yes, historically, the RSA case status system allowed only one Post Employment services opening of a file. However, neither IRIS nor the law prohibits more than one Post Employment service attempt. If the conditions for post-employment are met, then post-employment is appropriate. See Post-Employment Guidance Piece. (Reviewed: 06/2014)

8. When should we code something as activity code 146 Small Business?

[Opinion of DVR Policy Analyst] - We need to report annually to RSA expenditures for small business. They define these in the following way: "expenditures made for the provision of services supporting small business enterprises".

"These services would include technical assistance and other consultation services to conduct market analyses, develop business plans, and otherwise provide resources, to the extent such resources are authorized to be provided through the statewide workforce investment system, to eligible individuals who are pursuing self-employment or telecommuting or establishing a small business operation as an employment outcome." (Reviewed: 06/2014)

9. Are jobs in Affirmative Industries considered competitive employment in an integrated setting for VR purposes?

[Opinion of DVR Policy Analyst] - No. The RSA Informal Policy Group has reviewed the "Affirmative Industry" question submitted by the Wisconsin Division of Vocational Rehabilitation. Specifically, the Wisconsin DVR queried, with regard to an "Affirmative Industry," whether an employee mix of 60% disabled and 40% non-disabled would meet the definition of "integrated setting" at 34 CFR 361.5(b)(33). The Wisconsin DVR expressed their belief that at least 51% of the employees should be non-disabled for an "Affirmative Industry" to meet the definition of an "integrated setting."

The Wisconsin DVR describes an "Affirmative Industry" as a an entity being established by a Community Rehabilitation Facility (CRF) in Wisconsin in which individuals with disabilities and non-disabled individuals will work together in similar positions. "Affirmative Industries" are typically located away from the CRF, in industrial settings. Individuals with disabilities receive the customary wages and benefits paid to non-disabled individuals performing similar work.

An "integrated setting," with respect to an employment outcome, means a setting typically found in the community in which applicants or eligible individuals interact with non-disabled individuals, other than non-disabled individuals who are providing services to those applicants or eligible individuals, to the same extent that non-disabled individuals in comparable positions interact with other persons. 34 CFR 361.5(b)(33)(ii), emphasis added.

The consensus of the Informal Policy Group is that an "Affirmative Industry," as described by the Wisconsin DVR, does not meet the definition of the term "integrated setting." The Group interprets the phrase "a setting typically found in the community" to refer to everyday work settings that exist without consideration of whether employed individuals are disabled. No specific number or percentage of disabled versus non-disabled employees is required, nor expected, for purposes of meeting the definition. Work settings that are purposely set up to employ a given number or percentage of persons with disabilities are not "typically found in the community." (Reviewed: 06/2014)

10. Is working at a CRP on a production line considered a competitive and integrated setting?

[Opinion of DVR Policy Analyst] - This is an excellent question. I am including with my response several citations from federal regulations, the definitions of competitive employment, of employment outcome, of integrated setting, and the discussion of competitive employment.

It seems to me you need to ask 3 questions to determine if the work at the community rehabilitation center is competitive and integrated. These three questions cannot really be separated.

1. Is the salary at or above minimum wage and customary to that received by non-disabled employees?

2. Does the position give the individual the same opportunities to interact with non-disabled people that exist for non-disabled employees?

3. Is this job considered a job for people with disabilities, or a job for any qualified person in the community? Is this the kind of job your non-disabled neighbor might consider if he/she was laid-off from their current job?

The issue is not so much the number of non-disabled people the consumer interacts with as it is the normalcy (relative to non-disabled employees) of the position. In other words, does the consumer have the same opportunities and full range of choices which exist for the non-disabled general public?

Another way of looking at it is what is the mission of the employer? If the mission of the employer is to provide a service or good to the public then they are probably an integrated setting. If the mission is to provide employment to people with disabilities, then they are probably not an integrated setting.

Sec. 361.5 Applicable definitions.

(b)(11) Competitive employment means work--

(i) In the competitive labor market that is performed on a full-time or part-time basis in an integrated setting; and

(ii) For which an individual is compensated at or above the minimum wage, but not less than the customary wage and level of benefits paid by the employer for the same or similar work performed by individuals who are not disabled.

(b)(16) Employment outcome means, with respect to an individual, entering or retaining full-time or, if appropriate, part-time competitive employment in the integrated labor market to the greatest extent practicable; supported employment; or any other type of employment, including self-employment, telecommuting, or business ownership, that is consistent with an individual's strengths, resources, priorities, concerns, abilities, capabilities, interests, and informed choice.

(b)(33) Integrated setting,--

(i) With respect to the provision of services, means a setting typically found in the community in which applicants or eligible individuals interact with non-disabled individuals other than non-disabled individuals who are providing services to those applicants or eligible individuals;

(ii) With respect to an employment outcome, means a setting typically found in the community in which applicants or eligible individuals interact with non-disabled individuals, other than non-disabled individuals who are providing services to those applicants or eligible individuals, to the same extent that non-disabled individuals in comparable positions interact with other persons.

Competitive Employment:

Comments: One commenter questioned the basis for the requirement that ``competitive employment'' be limited to employment outcomes in integrated settings. A second commenter asked that we broaden the definition of ``competitive employment'' in the proposed regulations to include employment under the Javits-Wagner-O'Day (JWOD) program if that employment is chosen by the eligible individual. Discussion: The proposed definition of ``competitive employment'' was the same as that found in the previous regulations.

Although the term is not defined in the Act, section 7(11), the statutory definition of "employment outcome" does refer to competitive employment in the integrated labor market. On that basis, and in light of the great emphasis that the Act places on maximizing the integration into society of persons with disabilities, it has been our longstanding policy to define ``competitive employment'' to mean employment in an integrated setting (at or above minimum wage). For further information on the integrated setting (and wage) components of the "competitive employment" definition, please refer to the relevant discussion in the preamble to the previous regulations (62 FR 6310 through 6311). Whether an employment outcome meets the regulatory definition of ``competitive employment'' is to be determined on case-by-case basis. If a particular job, including a job secured under the JWOD program, is integrated (i.e., the individual with a disability interacts with non-disabled persons to the same extent that non-disabled individuals in comparable positions interact with other persons; Sec. 361.5(b)(33)(ii) of the final regulations) and the individual is compensated at or above the minimum wage (and not less than the customary wage and benefit level paid by the employer for the same or similar work performed by individuals who are not disabled; Sec. 361.5(b)(11)(ii) of the final regulations), then that position would be considered competitive employment. In fact, we expect that many jobs secured under JWOD service contracts would meet these criteria. On the other hand, employment in a non-integrated setting such as a sheltered workshop would not qualify as competitive employment regardless of whether the position is obtained under a JWOD contract or another program or arrangement.

Changes: None.

The federal regs of January 22, 2001 contain some additional language on this topic. The purpose of these regs was to convey the message to the states that sheltered employment was no longer appropriate for VR to consider as a successful outcome.

I have mixed feelings about the situation you are describing. I think you need to weigh, on a case by case basis, the extent to which this is the best employment outcome for the individual, relative to all of the criteria listed below. To what extent does the consumer want this job? Since it is not subsidized by the county and since it is minimum wage or higher, you don't have a problem there. But you and the counselor will need to decide how comfortable you are with the appropriateness of this job for this particular consumer. The next paragraph is from the introduction to the regulations:

The chief purpose of these regulations is to ensure, as we believe Title I of the Act intends, that participants in the VR program, particularly those with significant disabilities, are afforded a full opportunity to integrate within their communities and participate in jobs that are available to the general population.

Sec. 361.5 Applicable definitions.

* * (b) * * *

(16) Employment outcome means, with respect to an individual, entering or retaining full-time or, if appropriate, part-time competitive employment, as defined in Sec. 361.5(b)(11), in the integrated labor market, supported employment, or any other type of employment in an integrated setting, including self-employment, telecommuting, or business ownership, that is consistent with an individual's strengths, resources, priorities, concerns, abilities, capabilities, interests, and informed choice. (Reviewed: 06/2014)

11. Can we consider a successful closure for a job that is paid by cash only, or does WC have to be available?

[Opinion of DVR Policy Analyst] - The method of payment of wages and the eligibility for worker's compensation (WC) are not in and of themselves reasons a job would not be considered successful (unless you and the consumer decided that these were issues of importance to the consumer). (Reviewed: 06/2014)

12. Is military service an appropriate employment outcome?

[Opinion of DVR Policy Analyst] - There is nothing prohibiting us from using military service as an appropriate employment outcome, For this consumer if the job meets the criteria of the identified goal in the IPE and you can show that DVR services helped significantly in them choosing this occupation and reaching the goal, DVR could collect a successful closure outcome (26). (Reviewed: 07/2014)

13. Can the counselor close a file as successful if the consumer is unhappy with the job?

Generally not. See the underlined section of the following quotation from federal regulations.

34 CFR 361.5(b)(16) Employment outcome means, with respect to an individual, entering or retaining full-time or, if appropriate, part-time competitive employment in the integrated labor market to the greatest extent practicable; supported employment; or any other type of employment, including self-employment, telecommuting, or business ownership, that is consistent with an individual's strengths, resources, priorities, concerns, abilities, capabilities, interests, and informed choice.

34 CFR 361.56 Requirements for closing the record of services of an individual who has achieved an employment outcome.
The record of services of an individual who has achieved an employment outcome may be closed only if all of the following requirements are met:
(a) Employment outcome achieved. The individual has achieved the employment outcome that is described in the individual's IPE in accordance with Sec. 361.46(a)(1) and is--
(1) Consistent with the individual's strengths, resources, priorities, concerns, abilities, capabilities, interests, and informed choice; and (2) In the most integrated setting possible, consistent with the individual's informed choice.
(b) Employment outcome maintained. The individual has maintained the employment outcome for an appropriate period of time, but not less than 90 days, necessary to ensure the stability of the employment outcome, and the individual no longer needs vocational rehabilitation services.
(c) Satisfactory outcome. At the end of the appropriate period under paragraph (b) of this section, the individual and the qualified rehabilitation counselor employed by the designated State unit consider the employment outcome to be satisfactory and agree that the individual is performing well in the employment.
(d) Post-employment services. The individual is informed through appropriate modes of communication of the availability of post-employment services.

Having said this, exceptions can be made if the counselor believes that the employment outcome of the IPE has been achieved. This decision should not be made without full consultation with the consumer.

In some cases an exception can be made if the counselor believes that the employment outcome of the IPE has been achieved, and the consumer feels the job is okay for now for various reasons, i.e., needing to earn an income, no other job prospects, etc. As long as the consumer agrees that he/she wants to continue working at the job and is not saying that he wants to quit and find another job, we can considered him satisfied with some aspects of the job, and can close it 26.

This decision should not be made without full consultation with the consumer. (Reviewed: 07/2014)

14. Should a case be kept open for 90 days from the last purchase before it can be closed as successfully rehabilitated?

The file should remain open for a minimum of 90 days after the employment goal has been achieved and the consumer no longer needs rehabilitation services (services that are needed for the achievement of the IPE goal have been provided).Allison will get recent email correspondence to update. (Reviewed: 07/2014)

15. If someone is working and things are going well, but then changes jobs, do we need to start the 90 day clock again?

Based on 361.56(b) which talks about the necessity of ensuring the stability of the employment outcome, the 90 day clock needs to start again because this is a new employer/company with a new supervisor, co-workers, etc. so really the process is necessary again to make sure the person is stable in the new setting and no longer requires further DVR services. The file should remain open for a minimum of 90 days after the employment goal has been achieved and the consumer no longer needs rehabilitation services (services that are needed for the achievement of the IPE goal have been provided). If you provide a service that does not directly affect the stability/achievement of the employment goal e.g. work shoes, uniform, etc., during the 90 day follow along period, you do not have to start the 90 day clock over again.

Reminder: 90 days is the minimum follow along period. If additional time is needed to ensure that the consumer's employment is stable, the follow along time should be extended. (Added: 07/2015)

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