federal register - U.S. Government Printing Office

Federal Register / Vol. 62, No. 28 / Tuesday, February 11, 1997 / Rules and Regulations6353(3) During the extended evaluationperiod, the State unit shall develop awritten plan for determining eligibilityand for determining the nature andscope of services required to achieve anemployment outcome. The State unitmay provide during this period onlythose services that are necessary tomake these two determinations.(4) The State unit shall assess theindividual’s progress as frequently asnecessary, but at least once every 90days, during the extended evaluationperiod.(5) The State unit shall terminateextended evaluation services at anypoint during the 18-month extendedevaluation period if the State unitdetermines that—(i) There is sufficient evidence toconclude that the individual can benefitfrom the provision of vocationalrehabilitation services in terms of anemployment outcome; or(ii) There is clear and convincingevidence that the individual isincapable of benefiting from vocationalrehabilitation services in terms of anemployment outcome.(e) Data for determination of priorityfor services under an order of selection.If the State unit is operating under anorder of selection for services, asprovided in § 361.36, the State unit shallbase its priority assignments on—(1) A review of the data that wasdeveloped under paragraphs (c) and (d)of this section to make the eligibilitydetermination; and(2) An assessment of additional data,to the extent necessary.(Authority: Secs. 7(22)(A)(ii), 7(22)(C)(iii),101(a)(9)(A), 101(a)(14), 101(a)(31), 102(a)(1),102(a)(2), 102(a)(3), 102(a)(4), 103(a)(4), and103(a)(6) of the Act; 29 U.S.C. 706(22)(A)(ii),706(22)(C)(iii), 721(a)(9)(a), 721(a)(14),721(a)(31), 722(a)(1), 722(a)(2), 722(a)(3),722(a)(4), 723(a)(4), and 723(a)(6))Note: Clear and convincing evidencemeans that the designated State unit shallhave a high degree of certainty before it canconclude that an individual is incapable ofbenefiting from services in terms of anemployment outcome. The ‘‘clear andconvincing’’ standard constitutes the higheststandard used in our civil system of law andis to be individually applied on a case-bycasebasis. The term clear meansunequivocal. Given these requirements, areview of existing information generallywould not provide clear and convincingevidence. For example, the use of anintelligence test result alone would notconstitute clear and convincing evidence.Clear and convincing evidence might includea description of assessments, includingsituational assessments and supportedemployment assessments, from serviceproviders who have concluded that theywould be unable to meet the individual’sneeds due to the severity of the individual’sdisability. The demonstration of ‘‘clear andconvincing evidence’’ must include, ifappropriate, a functional assessment of skilldevelopment activities, with any necessarysupports (including assistive technology), inreal life settings. (S. Rep. No. 357, 102dCong., 2d. Sess. 37–38 (1992))§ 361.43 Procedures for ineligibilitydetermination.The State plan must assure that if theState unit determines that an applicantis ineligible for vocational rehabilitationservices or determines that anindividual receiving services under anindividualized written rehabilitationprogram is no longer eligible forservices, the State unit shall—(a) Make the determination only afterproviding an opportunity for fullconsultation with the individual or, asappropriate, with the individual’srepresentative;(b) Inform the individual in writing,supplemented as necessary by otherappropriate modes of communicationconsistent with the informed choice ofthe individual, of the ineligibilitydetermination, including the reasons forthat determination, the requirementsunder this section, and the means bywhich the individual may express andseek remedy for any dissatisfaction,including the procedures for review ofa determination by the rehabilitationcounselor or coordinator in accordancewith § 361.57;(c) Provide the individual with adescription of services available from aclient assistance program establishedunder 34 CFR part 370 and informationon how to contact that program; and(d) Review within 12 months andannually thereafter if requested by theindividual or, if appropriate, by theindividual’s representative anyineligibility determination that is basedon a finding that the individual isincapable of achieving an employmentoutcome. This review need not beconducted in situations in which theindividual has refused it, the individualis no longer present in the State, theindividual’s whereabouts are unknown,or the individual’s medical condition israpidly progressive or terminal.(Authority: Secs. 101(a)(9)(D), 102(a)(6), and102(c) of the Act; 29 U.S.C. 721(a)(9),722(a)(6), and 722(c))§ 361.44 Closure without eligibilitydetermination.The State plan must assure that theState unit may not close an applicant’srecord of services prior to making aneligibility determination unless theapplicant declines to participate in, or isunavailable to complete an assessmentfor determining eligibility and priorityfor services, and the State unit has madea reasonable number of attempts tocontact the applicant or, if appropriate,the applicant’s representative toencourage the applicant’s participation.(Authority: Secs. 12(c) and 101(a)(6)(A) of theAct; 29 U.S.C. 711(c) and 721(a)(6))§ 361.45 Development of the individualizedwritten rehabilitation program.(a) Purpose. The State plan mustassure that the State unit conducts anassessment for determining vocationalrehabilitation needs for each eligibleindividual or, if the State is operatingunder an order of selection, for eacheligible individual to whom the State isable to provide services. The purpose ofthis assessment is to determine the longtermvocational goal, intermediaterehabilitation objectives, and the natureand scope of vocational rehabilitationservices to be included in the IWRP,which must be designed to achieve anemployment outcome that is consistentwith the individual’s unique strengths,priorities, concerns, abilities,capabilities, career interests, andinformed choice.(b) Procedural requirements. TheState plan must assure that—(1) The IWRP is developed jointly,agreed to, and signed by the vocationalrehabilitation counselor or coordinatorand the individual or, as appropriate,the individual’s representative withinthe framework of a counseling andguidance relationship;(2) The State unit has established andimplemented standards for the promptdevelopment of IWRPs for theindividuals identified under paragraph(a) of this section, including timelinesthat take into consideration the needs ofthe individual;(3) The State unit advises eachindividual or, as appropriate, theindividual’s representative of all Stateunit procedures and requirementsaffecting the development and review ofan IWRP, including the availability ofappropriate modes of communication;(4) In developing an IWRP for astudent with a disability who isreceiving special education services, theState unit considers the student’sindividualized education program;(5) The State unit reviews the IWRPwith the individual or, as appropriate,the individual’s representative as oftenas necessary, but at least once each yearto assess the individual’s progress inmeeting the objectives identified in theIWRP;(6) The State unit incorporates intothe IWRP any revisions that arenecessary to reflect changes in theindividual’s vocational goal,intermediate objectives, or vocationalrehabilitation services, and obtains the