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6352 Federal Register / Vol. 62, No. 28 / Tuesday, February 11, 1997 / Rules and Regulations§ 361.40 Reports.The State plan must assure that theState unit—(a) Will submit reports in the formand detail and at the time required bythe Secretary, including reports requiredunder sections 13, 14, and 101(a)(10) ofthe Act; and(b) Will comply with anyrequirements necessary to ensure thecorrectness and verification of thosereports.(Approved by the Office of Management andBudget under control number 1820–0500.)(Authority: Sec. 101(a)(10) of the Act; 29U.S.C. 721(a)(10))State Plan Content: Provision andScope of Services§ 361.41 Processing referrals andapplications.(a) Referrals. The State plan mustassure that the designated State unit hasestablished and implemented standardsfor the prompt and equitable handlingof referrals of individuals for vocationalrehabilitation services. The standardsmust include timelines for making goodfaith efforts to inform these individualsof application requirements and togather information necessary to initiatean assessment for determining eligibilityand priority for services.(b) Applications. (1) The State planmust assure that once an individual hassubmitted an application for vocationalrehabilitation services, an eligibilitydetermination will be made within 60days, unless—(i) Exceptional and unforeseencircumstances beyond the control of theagency preclude a determination within60 days and the agency and theindividual agree to a specific extensionof time; or(ii) An extended evaluation isnecessary, in accordance with§ 361.42(d).(2) An individual is considered tohave submitted an application when theindividual or the individual’srepresentative, as appropriate,—(i) Has completed and signed anagency application form or hasotherwise requested services;(ii) Has provided informationnecessary to initiate an assessment todetermine eligibility and priority forservices; and(iii) Is available to complete theassessment process.(3) The designated State unit shallensure that its application forms arewidely available throughout the State.(Authority: Sec. 101(a)(6)(A) and 102(a)(5)(A)of the Act; 29 U.S.C. 721(a)(6)(A) and722(a)(5)(A))§ 361.42 Assessment for determiningeligibility and priority for services.The State plan must assure that, inorder to determine whether anindividual is eligible for vocationalrehabilitation services and theindividual’s priority under an order ofselection for services (if the State isoperating under an order of selection),the designated State unit will conductan assessment for determining eligibilityand priority for services. Theassessment must be conducted in themost integrated setting possible,consistent with the individual’s needsand informed choice, and in accordancewith the following provisions:(a) Eligibility requirements.—(1) Basicrequirements. The State plan mustassure that the State unit’sdetermination of an applicant’seligibility for vocational rehabilitationservices is based only on the followingrequirements:(i) A determination that the applicanthas a physical or mental impairment.(ii) A determination that theapplicant’s physical or mentalimpairment constitutes or results in asubstantial impediment to employmentfor the applicant.(iii) A presumption, in accordancewith paragraph (a)(2) of this section,that the applicant can benefit in termsof an employment outcome from theprovision of vocational rehabilitationservices.(iv) A determination that theapplicant requires vocationalrehabilitation services to prepare for,enter into, engage in, or retain gainfulemployment consistent with theapplicant’s strengths, resources,priorities, concerns, abilities,capabilities, and informed choice.(2) Presumption of benefit. The Stateplan must assure that the designatedState unit will presume that anapplicant who meets the eligibilityrequirements in paragraphs (a)(1) (i) and(ii) of this section can benefit in termsof an employment outcome unless itdemonstrates, based on clear andconvincing evidence, that the applicantis incapable of benefitting in terms of anemployment outcome from vocationalrehabilitation services.(3) Limited presumption for SocialSecurity beneficiaries. The State planmust assure that, if an applicant hasappropriate evidence, such as an awardletter, that establishes the applicant’seligibility for Social Security benefitsunder Title II or Title XVI of the SocialSecurity Act, the designated State unitwill presume that the applicant—(i) Meets the eligibility requirementsin paragraphs (a)(1) (i) and (ii) of thissection; and(ii) Has a severe physical or mentalimpairment that seriously limits one ormore functional capacities in terms ofan employment outcome.(b) Prohibited factors. The State planmust assure that— (1) No duration ofresidence requirement is imposed thatexcludes from services any applicantwho is present in the State;(2) No applicant or group ofapplicants is excluded or foundineligible solely on the basis of the typeof disability;(3) The eligibility requirements areapplied without regard to the age,gender, race, color, creed, or nationalorigin of the applicant; and(4) The eligibility requirements areapplied without regard to the particularservice needs or anticipated cost ofservices required by an applicant or theincome level of an applicant orapplicant’s family.(c) Review and assessment of data foreligibility determination. Except asprovided in paragraph (d) of thissection, the designated State unit shallbase its determination of each of thebasic eligibility requirements inparagraph (a) of this section on—(1) A review and assessment ofexisting data, including counselorobservations, education records,information provided by the individualor the individual’s family, informationused by the Social SecurityAdministration, and determinationsmade by officials of other agencies; and(2) To the extent existing data do notdescribe the current functioning of theindividual or are unavailable,insufficient, or inappropriate to make aneligibility determination, an assessmentof additional data resulting from theprovision of vocational rehabilitationservices, including assistive technologydevices and services and worksiteassessments, that are necessary todetermine whether an individual iseligible.(d) Extended evaluation forindividuals with severe disabilities. (1)Prior to any determination that anindividual with a severe disability isincapable of benefitting from vocationalrehabilitation services in terms of anemployment outcome because of theseverity of that individual’s disability,the State unit shall conduct an extendedevaluation to determine whether or notthere is clear and convincing evidenceto support such a determination.(2) During the extended evaluationperiod, which may not exceed 18months, vocational rehabilitationservices must be provided in the mostintegrated setting possible, consistentwith the informed choice of theindividual.