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Scope of Vocational Rehabilitation Services for Individuals with Disabilities (§361.48)

Pre-ETS Notice

This part of the website has been updated to reflect the Notice of Interpretation in the Federal Register.

Regulation:
  • (361.48(a)) Pre-employment transition services.

    Each State must ensure that the designated State unit, in collaboration with the local educational agencies involved, provide, or arrange for the provision of, pre-employment transition services for all students with disabilities, as defined in § 361.5(c)(51), in need of such services, without regard to the type of disability, from Federal funds reserved in accordance with § 361.65, and any funds made available from State, local, or private funding sources. Funds reserved and made available may be used for the required, authorized, and pre-employment transition coordination activities under paragraphs (2), (3) and (4) of this section.

    (1) Availability of services. Pre-employment transition services must be made available Statewide to all students with disabilities, regardless of whether the student has applied or been determined eligible for vocational rehabilitation  services.

    (2) Required activities. The designated State unit must provide the following pre-employment transition services:

    (i) Job exploration counseling;

    (ii) Work-based learning experiences,which may include in-school or after school opportunities, or experience outside the traditional school setting (including internships), that is provided in an integrated environment in the community to the maximum extent possible;

    (iii) Counseling on opportunities for enrollment in comprehensive transition or postsecondary educational programs at institutions of higher education;

    (iv) Workplace readiness training to develop social skills and independent living; and

    (v) Instruction in self-advocacy (including instruction in person-centered planning), which may include peer mentoring (including peer mentoring from individuals with disabilities working in competitive integrated employment).

    (3) Authorized activities. Funds available and remaining after the provision of the required activities described in paragraph (a)(2) of this section may be used to improve the transition of students with disabilities from school to postsecondary education or an employment outcome by -

    (i) Implementing effective strategies to increase the likelihood of independent living and inclusion in communities and competitive integrated workplaces;

    (ii) Developing and improving strategies for individuals with intellectual disabilities and individuals with significant disabilities to live independently; participate in postsecondary education experiences; and obtain, advance in and retain competitive integrated employment;

    (iii) Providing instruction to vocational rehabilitation counselors, school transition personnel, and other persons supporting students with disabilities;

    (iv) Disseminating information about innovative, effective, and efficient approaches to achieve the goals of this section;

    (v) Coordinating activities with transition services provided by local educational agencies under the Individuals with Disabilities Education Act (20 U.S.C. 1400 et seq.);

    (vi) Applying evidence-based findings to improve policy, procedure, practice, and the preparation of personnel, in order to better achieve the goals of this section;

    (vii) Developing model transition demonstration projects;

    (viii) Establishing or supporting multistate or regional partnerships involving States, local educational agencies, designated State units, developmental disability agencies, private businesses, or other participants to achieve the goals of this section; and

    (ix) Disseminating information and strategies to improve the transition to postsecondary activities of individuals who are members of traditionally unserved and underserved populations.

    (4) Pre-employment transition coordination. Each local office of a designated State unit must carry out responsibilities consisting of -

    (i) Attending individualized education program meetings for students with disabilities, when invited;

    (ii) Working with the local workforce development boards, one-stop centers, and employers to develop work opportunities for students with disabilities, including internships, summer employment and other employment opportunities available throughout the school year, and apprenticeships;

    (iii) Working with schools, including those carrying out activities under section 614(d) of the IDEA, to coordinate and ensure the provision of pre-employment transition services under this section;

    (iv) When invited, attending person-centered planning meetings for individuals receiving services under title XIX of the Social Security Act (42 U.S.C. 1396 et seq.);

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  • (361.48(b)) Services for individuals who have applied for or been determined eligible for vocational rehabilitation

    ...(18) Transition services for students and youth with disabilities, that facilitate the transition from school to postsecondary life, such as achievement of an employment outcome in competitive integrated employment, or pre-employment transition services for students.

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Preamble Discussion:
  • Scope of Pre-Employment Transition Services and Use of Reserve found in the preamble Pre-employment Transition Services (§361.48(a)) Final VR Regulations at 81 FR 55690 (August 19, 2016)

    • Discussion: Section 113(a) of the Act, as amended by WIOA, states that the funds reserved under section 110(d) and any funds made available from State, local, or private (other) sources shall be used to provide, or arrange for the provision of, pre-employment transition services. The coordination activities required by section 113(d) of the Act, as amended by WIOA, and final §361.48(a)(4) are essential for arranging and providing the "required" and "authorized" activities set forth in section 113(b) and (c) of the Act and final §361.48(a)(2) and (3).  Therefore, there is no statutory authority to limit the scope of final 361.48(a) to only the direct services required by section 113(b) of the Act.  See a more detailed discussion of the definition of "Pre-Employment Transition Services," and the services included in that definition, earlier in this section.

      We agree with the commenter that proposed §361.48(a) should be revised to clarify that pre-employment transition coordination services provided under §361.48(a)(4) may be paid with funds reserved for providing pre-employment transition services, because coordination activities are essential for arranging and providing those services, as required by section 113(a) of the Act and §361.48(a).

      Changes:  We have revised final §361.48(a) to clarify that the funds reserved for the provision of pre-employment transition services may be used to pay for pre-employment transition coordination activities.

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  • Potentially Eligible found in the preamble Pre-employment Transition Services (§361.48(a)) Final VR Regulations at 81 FR 55690-55691 (August 19, 2016)

    • Discussion: We appreciate the comments supporting the proposed regulation, as well as comments expressing concerns and suggestions for changes. After much consideration of all available options, we have decided to maintain our interpretation of "potentially eligible" for purposes of pre-employment transition services.  In so doing, all students with disabilities, regardless of whether they have applied for or been determined eligible for the VR program, may receive pre-employment transition services. The Secretary believes this is the broadest legally supportable interpretation and the one that is most consistent with the apparent congressional intent.

      Most notably, section 113 of the Act is the only statutory section that references "potentially eligible" students with disabilities. All other sections of title I of the Act refer to "applicants" or individuals determined eligible for services. Given the stark contrast in the use of "potentially eligible" in section 113 of the Act, the Secretary believes it imperative that meaning is given to that phrase by not limiting it to individuals who have applied for or been determined eligible for the VR program.

      The broader interpretation means all students with disabilities will be able to obtain much-needed pre-employment transition services and begin the early phase of job exploration without the potential delays, and the administrative burden on DSU personnel and resources, caused by application processing, eligibility determinations, assignment to an order of selection category, and development of an individualized plan for employment.  However, there is nothing that precludes a DSU from taking an application as soon as a student expresses an interest in pre-employment transition services or other vocational rehabilitation services and making a timely determination of eligibility.

      We want to emphasize that the phrase "potentially eligible" applies only in the context of pre-employment transition services.  This means that students with disabilities who need individualized services beyond the scope of pre-employment transition services (e.g., transition and other vocational rehabilitation services) must first apply for, and be determined eligible for, the VR program, be assigned to the appropriate category if the State is on an order of selection, and develop an approved individualized plan for employment. We recommend that DSUs request students with disabilities who are "potentially eligible" for vocational rehabilitation services and receiving pre-employment transition services submit an application for services as soon as possible in the event further vocational rehabilitation services are needed.

      This recommendation is especially pertinent for those States that have implemented an order of selection. A student's position on the waitlist for services other than pre-employment transition services, in the event the student is placed in a closed category, is based on the date of application, not the date of referral or the receipt of pre-employment transition services.  To provide students with disabilities an opportunity to apply for services as early as possible in the transition process and ensure a smooth transition into the VR program, it is imperative that DSUs collaborate with educational programs to identify students who may be eligible or potentially eligible for vocational rehabilitation services and engage parents and representatives.  The earlier a student is placed on a wait list, the sooner his or her turn will open in the State's order in the event a State is on an order of selection.

      We want to make clear that neither the Act nor these final regulations exempt these students with disabilities from the State's order of selection, if one has been implemented, or VR program requirements once they apply and are determined eligible for services. While under the order of selection regulations at §361.36, the student could continue to receive pre-employment transition services if such services have begun, a student could not begin to receive pre-employment transition services if such services had not begun prior to applying and being determined eligible. To permit such would create an exemption from the order of selection requirements and the statute does not provide such authority. However, we recognize the benefit early services can have for students. Therefore, we want to make clear that these students could receive transition services offered to groups of students and youth with disabilities under §361.49. While not identical to pre-employment transition services, many similar services could be provided under the services to groups authority.

      A detailed discussion regarding comments related to the continuation of pre-employment transition services under an order of selection is provided in the Continuation of Pre-Employment Transition Services section later in this Analysis of Comments and Changes.

      In response to the concern related to the availability of services from the CAP, section 112(a) of the Act, as amended by WIOA, specifically authorizes CAP grantees to assist individuals receiving services under sections 113 and 511 of the Act.  Therefore, these individuals are clients and client-applicants for purposes of the CAP.

      Finally, as discussed previously under "Coordination with Education Officials," parental consent to participate in pre-employment transition services is governed by State law, as well as policies of the educational programs and the DSU. Furthermore, informed choice, as outlined in final §361.52, applies throughout the vocational rehabilitation process; therefore, students with disabilities receiving pre-employment transition services under final §361.48(a) must be given the opportunity to exercise their informed choice.

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  • Discretion to Provide Pre-Employment Transition Services to All Students with Disabilities found in the preamble Pre-employment Transition Services (§361.48(a)) Final VR Regulations at 81 FR 55691 (August 19, 2016)

    • Discussion: We agree that clarification is necessary. Section 110(d)(1) of the Act, as amended by WIOA, requires States to reserve at least 15 percent of their Federal vocational rehabilitation allotment for providing pre-employment transition services. Moreover, section 113 of the Act, as amended by WIOA, requires States to use the reserved funds to provide, or arrange for the provision of, pre-employment transition services to all students with disabilities in need of such services who are eligible or potentially eligible for services.

      Therefore, the requirement to reserve and use funds for providing pre-employment transition services is mandatory, not discretionary. A State must provide pre-employment transition services to all students with disabilities needing those services and may not limit or expand those services. We used the term ‘‘may'' in proposed § 361.48(a)(1) to recognize that, for the first time, the Act permitted the delivery of pre-employment transition services to students with disabilities who have not applied for or been determined eligible for the VR program. However, we acknowledge the confusion caused by the use of the term. We therefore clarify that States must provide pre-employment transition services not only to students with disabilities who have applied for vocational rehabilitation services but also to those students with disabilities who have not applied for services.

      Changes: We have revised final § 361.48(a)(1) to clarify that DSUs must make pre-employment transition services available statewide to all students with disabilities, not just those who have applied for or been determined eligible for vocational rehabilitation services.

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  • Provision of Required Activities Based on Need found in the preamble Pre-employment Transition Services (§361.48(a)) Final VR Regulations at 81 FR 55691-55692 (August 19, 2016)

    • Discussion: Section 113(a) and (b) of the Act, as amended by WIOA, when read in concert with each other, as well as final §361.48(a)(2), require the DSU to make certain "required" pre-employment transition services available to all students with disabilities who need them. However, none of these provisions mandate that all five "required" activities be provided to each student with a disability if all the activities are not necessary. Pre-employment transition services, as is true for any vocational rehabilitation service, must be provided solely on the basis of the individual's need for that service.

      Under final §361.50, DSUs are responsible for developing policies, in consultation with the SRC, for determining the need for pre-employment transition services.  These policies must include clear and consistent criteria based on the needs of students identified in the comprehensive statewide needs assessment.  The policies will guide the DSU, in consultation with school personnel, family members, and students with a disability, in determining which pre-employment transition services each student needs, consistent with his or her interests and informed choice.

      Finally, pre-employment transition services are designed to be an early start at job exploration for students with disabilities and should enrich, not delay, transition planning, application to the VR program, and the continuum of vocational rehabilitation services necessary for movement from school to post-school activities.  Neither section 113 of the Act, as amended by WIOA, nor final §361.48(a) requires students with disabilities receiving pre-employment transition services to apply for, or be determined eligible for, the VR program or to receive other vocational rehabilitation services.  The Act and these final regulations maximize opportunities for achieving competitive integrated employment by imposing no requirement that would delay or hinder the student's ability to access these crucial early services or that would permit a DSU to coerce an individual to participate in any of them. However, should the student with a disability need additional vocational rehabilitation services, he or she must apply for and be determined eligible for those services.  See the more detailed discussion of comments related to "Potentially Eligible" earlier in this section.

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  • Continuation of Pre-Employment Transition Services is found in the preamble Pre-employment Transition Services (§361.48(a)) Final VR Regulations at 81 FR 55692-55693 (August 19, 2016)

    • Discussion: We understand the commenters' concerns about the continuation of services for students with disabilities after receiving pre-employment transition services, as some students may apply but not be determined eligible for the VR program. Others may no longer satisfy the definition of a "student with a disability" because they are no longer within the required age range or are no longer participating in an education program. These issues arise only when a student with a disability who is receiving, or has received, pre-employment transition services also needs other vocational rehabilitation services. All students with disabilities who apply for vocational rehabilitation services, even if they are still receiving pre-employment transition services, will be subject to all relevant requirements for eligibility, order of selection, and development of the individualized plan for employment (including its development prior to leaving school under final §361.22(a)(2)). Neither the Act nor these final regulations exempt students with disabilities from any of these requirements, which apply to all VR program applicants.

      Section 101(a)(5) of the Act, as amended by WIOA, does not exempt students with disabilities receiving pre-employment transition services prior to the determination of eligibility from a State's order of selection; therefore, we do not have the statutory authority to include such an exemption in final §361.36. Nonetheless, consistent with the policy underlying prior §361.36(e)(3), which requires a DSU to continue providing vocational rehabilitation services to individuals who had begun receiving these services under an individualized plan for employment prior to the implementation of an order of selection, it is imperative that students with disabilities not experience a disruption in the pre-employment transition services that they are receiving and that are so critical to their transition to postsecondary education and employment. Thus, we have revised final §361.36(e)(3) by requiring DSUs implementing an order of selection to continue the provision of pre-employment transition services to students with disabilities who were receiving these services prior to the determination of eligibility and assignment to a priority category. DSUs may use the funds reserved under section 110(d) and final §361.65(a)(3) for the continuation of these services. This change does not permit the DSU to provide any other transition or vocational rehabilitation services for students with disabilities assigned to closed priority categories.

      As for ceasing to satisfy the definition of "student with a disability," pre-employment transition services under section 113 of the Act and final §361.48(a) are available only to students with disabilities. Therefore, if an individual no longer meets the definition of a "student with a disability," despite the fact that he or she has received or is receiving pre-employment transition services, he or she is no longer able to receive these services under section 113 of the Act and final §361.48(a).  However, if the individual has been determined eligible for vocational rehabilitation services and has been assigned to an open category in the State's order of selection, if the State has implemented one, he or she may continue to receive the same types of pre-employment transition services under section 103(a) of the Act and final 361.48(b), in accordance with an approved individualized plan for employment. The DSU would pay for these services with VR funds, other than those reserved for the provision of pre-employment transition services under section 113 of the Act because the reserved funds must be used solely for the provision of pre-employment transition services to individuals who satisfy the definition of a "student with a disability."

      Changes: We have revised final §361.36(e)(3) by requiring a designated State unit implementing an order of selection to continue to provide pre-employment transition services to students with disabilities who have begun receiving these services prior to the determination of eligibility and assignment to a closed priority category.

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  • Required Activities is found in the preamble Pre-employment Transition Services (§361.48(a)) Final VR Regulations at 81 FR 55693-55694 (August 19, 2016)

    • Discussion: We appreciate the commenters' suggestions, concerns, and requests for clarification. However, section 113(b) of the Act, as amended by WIOA, specifically itemizes the pre-employment transition services that must be provided–-the "required" activities. Furthermore, section 113(c) of the Act itemizes the pre-employment transition services that may be provided–-the "authorized" activities--in the event funds remain after providing the required activities. Given the Act's specificity about the pre-employment transition services that must be provided, as well as those that may be provided, there is no statutory basis to require additional activities or impose additional requirements, such as requiring that instruction in self-advocacy be provided by a recognized self-advocacy group of the individual's choosing or that peer mentoring occur during work experiences.

      We disagree with the commenters' request to revise 361.48(a)(2)(iii) to conform to similar language in the Higher Education Opportunity Act of 2008 and specifically includes programs and services for students with intellectual disabilities.  Final §361.48(a)(2)(iii) mirrors section 113(b)(3) of the Act, as amended by WIOA, and we do not believe the replacement of "or" with "and" helps to better describe the manner in which DSUs are to provide this service.  In addition, Section 113(b)(3)of the Act and final §361.48(a)(2)(iii) encompass counseling on the broad range of comprehensive transition or postsecondary education programs available to all students with disabilities, including students with intellectual disabilities. Therefore, we do not believe it is necessary to revise final §361.48(a)(2)(iii).

      Moreover, there is no statutory basis for States to develop their own menu of pre-employment transition services.  Rather, under section 113(b) of the Act and final §361.48(a)(2), each State must make all "required" pre-employment transition services available to students with disabilities who need such services.

      Similarly, contrary to recommendations made by commenters, we do not have the authority to remove, by regulation, statutory requirements. Accordingly, 361.48(a)(2)(ii) must be consistent with section 113(b)(2) of the Act, as amended by WIOA, which requires that work-based learning experiences occur in integrated settings to the maximum extent possible. While we agree with commenters that work-based learning experiences in integrated settings are optimal, the Act's use of the phrase "to the maximum extent possible" leaves open the possibility for work-based learning experiences in non-integrated settings.  Consequently, we cannot require that all work-based learning experiences occur in integrated settings. However, DSUs should exhaust all opportunities for work-based learning experiences in competitive integrated employment settings before considering provision of these services in non-integrated work settings, as appropriate for the needs, and consistent with the informed choice, of the individual student with a disability, and his or her family or guardian, as applicable.

      Having said this, the Department agrees that actual work experiences in integrated settings, rather than simulated or mock experiences in sheltered environments, provide students with disabilities with the most beneficial opportunities for job exploration, work-based learning, work readiness, and peer mentoring. The Secretary believes that DSUs, to the maximum extent possible, should provide work-based learning experiences, which may be paid or unpaid, through actual work experiences in integrated community environments to prepare students with disabilities for community-based competitive integrated employment, instead of using classrooms and educational facilities as settings for work-based learning experiences that segregate, replicate the tasks performed in adult sheltered employment, and often result in referrals to segregated employment settings following exit from school.

      If these are paid work-based learning experiences, students with disabilities must be paid competitive wages to the extent competitive wages are paid to students without disabilities.  Training stipends are also permissible for students with disabilities to the same extent that they are provided to students without disabilities participating in these experiences.  Similarly, nothing in the Act prohibits States from coordinating the provision of pre-employment transition services with entities that hold certificates issued by the Department of Labor under section 14(c) of the FLSA.  However, the Department strongly encourages training in competitive integrated settings to prepare students for competitive integrated employment.  In addition, there is no statutory basis here to require that self-advocacy instruction be provided by a specific entity.

      We agree that engaging students' parents or representatives is essential to their participation in pre-employment transition services and vital to their success. Since DSUs will be delivering pre-employment transition services to students with disabilities at a much younger age, parents must be involved, as required by State law and the policies of educational agencies and the DSU. We encourage DSUs to provide information regarding the application process and availability of services to all students with disabilities, and their parents or representatives, early in the transition process.  As such, parent centers funded through the Rehabilitation Act and the IDEA may serve as mechanisms for outreach to, and engagement of, parents.

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  • Continuum of Services is found in the preamble Pre-employment Transition Services (§361.48(a)) Final VR Regulations at 81 FR 55694-55695 (August 19, 2016)

    • Discussion: In response to requests for clarification, DSUs may provide, or arrange for the provision of, "required" pre-employment transition services to students with disabilities in classroom, employment, or community (group) settings. These services may be general in nature for students with disabilities who have not applied and been determined eligible for vocational rehabilitation services. As a student progresses through the vocational rehabilitation process by applying and being determined eligible for services, the DSU will have the information necessary to conduct assessments and provide more individualized and customized services to address the student's particular needs. But in some instances DSUs may nonetheless have sufficient information to provide individualized pre-employment transition services to students with disabilities who have not applied and been determined eligible for vocational rehabilitation services.  Thus, we decline to require in final §361.48(a)(2) that providing more individualized pre-employment transition services be limited to students with disabilities who have applied and been determined eligible for vocational rehabilitation services.

      Finally, section 113 requires that DSUs use the funds reserved under section 110(d) of the Act, as amended by WIOA, to provide pre-employment transition services not only to students with disabilities who are eligible for vocational rehabilitation services but also to students with disabilities who are potentially eligible for vocational rehabilitation services, which includes all students with disabilities regardless of whether they have submitted an application for these services.

      Examples of the five "required" activities and how they may be provided in either a group or individualized setting include, but are not limited to, the following:

      One, general job exploration counseling may be provided in a classroom or community setting and include information regarding in-demand industry sectors and occupations, as well as non-traditional employment, labor market composition, administration of vocational interest inventories, and identification of career pathways of interest to the students.  Job exploration counseling provided on an individual basis might be provided in school or the community and include discussion of the student's vocational interest inventory results, in-demand occupations, career pathways, and local labor market information that applies to those particular interests.

      Two, work-based learning experiences in a group setting may include coordinating a school-based program of job training and informational interviews to research employers, work-site tours to learn about necessary job skills, job shadowing, or mentoring opportunities in the community.  Work-based learning experiences on an individual basis could include work experiences to explore the student's area of interest through paid and unpaid internships, apprenticeships (not including pre-apprenticeships and Registered Apprenticeships), short-term employment, fellowships, or on-the-job trainings located in the community.  These services are those that would be most beneficial to an individual in the early stages of employment exploration during the transition process from school to post-school activities, including employment.  Should a student need more individualized services (e.g., job coaching, orientation and mobility training, travel expenses, uniforms or assistive technology), he or she would need to apply and be determined eligible for vocational rehabilitation services and develop and have an approved individualized plan for employment.

      Three, counseling on opportunities for enrollment in comprehensive transition or postsecondary educational programs at institutions of higher education in a group setting may include information on course offerings, career options, the types of academic and occupational training needed to succeed in the workplace, and postsecondary opportunities associated with career fields or pathways.  This information may also be provided on an individual basis and may include advising students and parents or representatives on academic curricula, college application and admissions processes, completing the Free Application for Federal Student Aid (FAFSA), and resources that may be used to support individual student success in education and training, which could include disability support services.

      Four, workplace readiness training may include programming to develop social skills and independent living, such as communication and interpersonal skills, financial literacy, orientation and mobility skills, job-seeking skills, understanding employer expectations for punctuality and performance, as well as other "soft" skills necessary for employment.  These services may include instruction, as well as opportunities to acquire and apply knowledge.  These services may be provided in a generalized manner in a classroom setting or be tailored to an individual's needs in a training program provided in an educational or community setting.

      Five, instruction in self-advocacy in a group setting may include generalized classroom lessons in which students learn about their rights, responsibilities, and how to request accommodations or services and supports needed during the transition from secondary to postsecondary education and employment.  During these lessons, students may share their thoughts, concerns, and needs, in order to prepare them for peer mentoring opportunities with individuals working in their area(s) of interest.  Further individual opportunities may be arranged for students to conduct informational interviews or mentor with educational staff such as principals, nurses, teachers, or office staff; or they may mentor with individuals employed by or volunteering for employers, boards, associations, or organizations in integrated community settings.  Students may also participate in youth leadership activities offered in educational or community settings.

      The wide variety of pre-employment transition services described in these examples is designed to be an early start at job exploration for students with disabilities.  DSUs are not to use these activities as assessment services for the purpose of determining whether additional vocational rehabilitation services are needed, or if the individual will be successful in employment.  In response to commenters' requests for clarification of the difference between employment assistance under pre-employment transition services and transition services, see more detailed descriptions of the distinctions between the two types of services in the Transition Services (section 361.5(c)(55)) and Scope of Pre-Employment Transition Services and Use of the Reserve sections earlier in this section B.

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  • Transition Services (§ 361.5(c)(55)) Scope of ‘‘Pre-Employment Transition Services’’ and ‘‘Transition Services’’ found in the preamble Final VR Regulations at 81 FR 55685 (August 19, 2016)

    • Discussion: We appreciate the support from commenters to maintain the proposed definition of ‘‘transition services’’ in final § 361.5(c)(55). As to the difference between ‘‘pre-employment transition services’’ and ‘‘transition services,’’ we believe the distinction between the two is critical. As stated in the preamble to the NPRM, vocational rehabilitation services are provided on a continuum, with pre-employment transition services being the earliest set of services available to students with disabilities. Pre-employment transition services, authorized by section 113 of the Act, as amended by WIOA, and implemented by final § 361.48(a), are designed to help students with disabilities to begin to identify career interests that will be further explored through additional vocational rehabilitation services, such as transition services. Furthermore, pre-employment transition services are only those services and activities listed in section 113 of the Act, as amended by WIOA, and final § 361.48(a). Job placement assistance is not included among the listed pre-employment transition services, but it could constitute a transition service under section 103(a)(15) of the Act and final § 361.48(b). Finally, pre-employment transition services are available only to students with disabilities, whereas transition services may be provided to a broader population—both students and youth with disabilities. Following the continuum, transition services represent the next set of vocational rehabilitation services available to students and youth with disabilities. They are outcome-oriented and promote movement from school to post-school activities, including postsecondary education, vocational training, and competitive integrated employment. As such, transition services may include job-related services, such as job search and placement assistance, job retention services, follow-up services, and follow along services, based on the needs of the Individual. Individualized transition services under section 103(a)(15) of the Act and final § 361.48(b) must be provided to students who have been determined eligible for the VR program and in accordance with an approved individualized plan for employment. Transition services also may be provided in group settings to students and youth with disabilities under section 103(b)(7) of the Act, as amended by WIOA, and final § 361.49(a)(7). Although these group services are not individualized, they can still be beneficial for job exploration, including presentations from employers in the community and group mentoring activities.

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  • Other Vocational Rehabilitation Services as Pre-Employment Transition Services is found in the preamble Pre-employment Transition Services (§361.48(a)) Final VR Regulations at 81 FR 55695 (August 19, 2016)

    • Discussion:  Section 113 of the Act, as amended by WIOA, and final §361.48(a) set out a list of pre-employment transition services that must be made available to all students with disabilities who are eligible or potentially eligible for vocational rehabilitation services ("required" activities), as well as those that may be provided ("authorized" activities).  Under section 113(a) of the Act, the funds required to be reserved for pre-employment transition services must be used solely for providing pre-employment transition services.  Therefore, the Department has no statutory authority to expand or limit the pre-employment transition services listed in section 113 of the Act, as amended by WIOA.  Furthermore, if a student with a disability needs any additional individualized vocational rehabilitation services, including those necessary for participating in pre-employment transition services, such as those provided under final §361.48(b), the student must apply and be determined eligible for vocational rehabilitation services and develop an individualized plan for employment that includes the additional necessary services.  These additional services must be charged as a vocational rehabilitation expenditure separate from the funds reserved for providing pre-employment transition services.

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  • Pre-Employment Transition Coordination Activities is found in the preamble Pre-employment Transition Services (§361.48(a)) Final VR Regulations at 81 FR 55695 - 55696 (August 19, 2016)

    • Discussion: We agree that alternate means for participating in pre-employment transition coordination activities (e.g., video conferences and teleconferences) could minimize travel time and costs and maximize both the number of individualized education program and person-centered planning meetings in which a vocational rehabilitation counselor could participate, as well as the number of direct services a vocational rehabilitation counselor could provide to students with disabilities.  Although §361.48(a)(4), both as proposed and final, does not explicitly permit DSUs to use alternate means to participate in individualized education program or person-centered planning meetings, it does not prohibit them.  DSUs may therefore use these alternate means.

      Decisions on how to conduct meetings is a matter of agency administration.  Conducting these meetings via alternate means would be consistent with the explicit authority to conduct alternate format meetings under section 101(a)(11)(D)(i) of the Act and final 361.22(b)(1).  Additionally, section 614(f) of the IDEA and its implementing regulations in 34 CFR 300.328 allow the parent of a child with a disability and a public agency to agree to use alternative means of meeting participation requirements, such as video conferences and conference calls, when conducting individualized education program team meetings and placement meetings under the IDEA, as well as carrying out administrative matters under section 615 of the IDEA (such as scheduling, exchange of witness lists, and status conferences).  Since the Act and the IDEA provide for alternate means for conducting meetings very similar to those required by section 113 of the Act and final §361.48(a), DSUs may use alternate means to conduct these meetings as well.  We do not believe a regulatory change is necessary to accomplish this.

      We agree that coordinating with federally funded parent centers is a mechanism that would help parents of students with disabilities understand the benefits of pre-employment transition services.  Section 113(d) of the Act, as amended by WIOA, however, does not require this.  The statute is clear that the funds reserved for providing pre-employment transition services must only be spent on the activities specified in section 113 of the Act, as amended by WIOA, and final §361.48(a).  Given the Act's specificity of the activities that constitute pre-employment transition services, there is no statutory authority for final 361.48(a)(4) to include any additional required coordination responsibilities.

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  • Documenting and Reporting is found in the preamble Pre-employment Transition Services (§361.48(a)) Final VR Regulations at 81 FR 55696 (August 19, 2016)

    • Discussion: Because sections 110(d) and 113 of the Act require a State to reserve and use at least 15 percent of its total vocational rehabilitation allotment for providing, or arranging for the provision of, pre-employment transition services to students with disabilities, it will be critical that the DSU implement administrative methods and procedures that ensure proper data collection and financial accountability of these reserved funds, as required by final §361.12 and 2 CFR 200.302 of the Uniform Guidance.  In addition, section 101(a)(10)(C) of the Act, as amended by WIOA, expands the VR program -specific data that DSUs must report, including data elements related to students with disabilities who are receiving pre-employment transition services.  These reporting requirements are included in final §361.40(a) to ensure that the Secretary has the information needed to assess the performance of the VR program, especially with regard to providing pre-employment transition services to students with disabilities.

      Although the Department recognizes the burden placed on DSUs to develop procedures for tracking pre-employment transition services and related expenditures for students who have not yet applied or been determined eligible for vocational rehabilitation services, DSUs are required by section 101(a)(10)(C) of the Act to do so in order to properly account for, and report, the provision of pre-employment transition services and the reserved funds spent on those services.  Moreover, the State's accounting procedures must be such that the DSU will be able to complete accurately all required forms, including financial reports, that show the reservation and use of these funds for this purpose, as required by final §361.12 and 2 CFR 200.302.

      The Department does not have the authority to grant exceptions from, or waivers of, these reporting requirements.  Regardless of whether students with disabilities are receiving pre-employment transition services without having applied or been determined eligible for vocational rehabilitation services, i.e. by virtue of the fact they are "potentially eligible" for the program, if Federal funds are being spent, expenditures must be tracked and monitored in accordance with final §361.12 and the Uniform Guidance in 2 CFR §200.302 (Financial Management), §200.328 (Monitoring), as well as the Federal cost principles in §§200.403 (Allowability), 200.404 (Reasonable) and 200.405 (Allocable).  Furthermore, the Department issued Policy Directive (PD) 15-05 on February 5, 2015, which provided technical assistance on reporting the total Federal expenditures for providing pre-employment transition services.  We appreciate the commenters' proposed alternate suggestions for reporting.  However, the Department uses the SF-425 to collect financial data from DSUs so that it can monitor the financial status of the VR program and assess grantee compliance with Federal fiscal requirements under the VR program, including requirements for the reservation and use of funds for providing pre-employment transition services.

      As they have been required to do for many years, DSUs must submit completed SF-425 reports semi-annually.  The end dates for each reporting period in a fiscal year are March 31 and September 30.  Semi-annual reports must be submitted no later than 45 days after the end of the reporting period.  Final reports must be submitted no later than 90 days after the period of performance. "Period of performance" means the time during which the non-Federal entity may incur new obligations to carry out the work authorized under the Federal award. 

      These final regulations do not affect any of these reporting requirements.  To ensure the proper accounting and reporting of services provided and funds expended, especially with regard to pre-employment transition services, DSUs must track and report data on students with disabilities until they no longer meet the definition of a student with a disability.  At that point, DSUs must track and report services provided to, and funds expended on, these individuals as they would any other individual receiving vocational rehabilitation services.

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  • Performance Measures is found in the preamble Pre-employment Transition Services (§361.48(a)) Final VR Regulations at 81 FR 55697 (August 19, 2016)

    • Discussion:  The VR program is no longer subject to its own set of performance standards and indicators established by the Department, as it had been prior to the enactment of WIOA.  Because the common performance accountability indicators are mandated by section 116(b) of title I of WIOA and apply to all six core programs of the workforce development system, including the VR program, the Departments of Education and Labor do not have the authority to establish additional performance accountability indicators beyond those identified in the statute.  However, section 106(a)(2) of the Act and section 116(b)(1)(A)(ii) of title I of WIOA permit States to develop additional accountability measures to evaluate the performance of the core partners in the workforce development system.  We intend to monitor State implementation of pre-employment transition services and expenditure of funds during our annual review and periodic on-site monitoring of State VR agencies to identify areas of concern and the need for technical assistance. The Departments of Education and Labor address the remaining comments in the joint final regulations implementing the performance accountability system under title I of WIOA, and published elsewhere in this issue of the Federal Register.

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  • Services for Individuals Who Have Applied for or Been Determined Eligible for Vocational Rehabilitation Services is found in the preamble Pre-employment Transition Services (§361.48(b)) Final VR Regulations at 81 FR 55697 (August 19, 2016)

    • Discussion:  We appreciate the support for, and consideration given by commenters to, proposed 361.48(b)(18). We agree that students and youth with disabilities should receive adequate information and applications for vocational rehabilitation services at the beginning of the transition from secondary programs to postsecondary activities.  A DSU may provide the information and application under final §§361.41 and 361.52, which require the DSU to establish and implement standards for promptly processing referrals, informing individuals of application requirements, and facilitating individuals' informed choice as they transition. Therefore, we do not believe it is necessary to add further requirements to final §361.48(b)(18).

      We acknowledge that the heightened emphasis on providing services to students and youth with disabilities may cause some DSUs concern about their ability to serve all individuals.  We believe that the process for implementing an order of selection established within section 101(a)(5) of the Act, as amended by WIOA, is adequate to address these concerns in the event that vocational rehabilitation services cannot be provided to all eligible individuals.

      We acknowledge the commenters' support and concerns about section 14(c) certificate holders providing transition and other vocational rehabilitation services.  While the Act does not prohibit community rehabilitation programs that are section 14(c) certificate holders from providing transition or other vocational rehabilitation services or training in sheltered settings, section 511 of the Act prohibits local and State educational agencies from entering into a contract or other arrangement with section 14(c) entities for the purpose of operating a program for youth with disabilities under which work is compensated at a subminimum wage.  The Department strongly encourages training in competitive integrated settings to prepare students for competitive integrated employment, as stated in the discussion of "required" activities in final 361.48(a) and discussed in more detail in Required Activities earlier in this section B. There is no statutory basis for requiring or permitting incentive payments for providing vocational rehabilitation services, including transition and supported employment services.

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