DRS RPM Chapter 3: Eligibility

3.1 Overview

Determining eligibility is a cornerstone of the VR process. Only the counselor may make an eligibility determination and does so by

*carefully assessing whether the consumer meets all criteria for eligibility; and
using information provided by
- the consumer,
- the consumer's family,
- physicians who have examined or treated the consumer, and
- data from other professionals or agencies who have knowledge of the consumer.

To the extent possible,

use existing information, and
consider the validity or correctness of the information based upon the source and your knowledge of the consumer.

If existing data is unavailable or insufficient, purchase diagnostics to address basic eligibility questions (see 3.3.4 Determining whether Records Are Current).

If assistive technology devices and services or worksite assessments are necessary to determine whether a consumer is eligible, they must be

conducted in the most integrated setting possible, and
consistent with the consumer's needs and informed choice.*

*Based on 34 CFR Section 361.42(d)

If it is in the best interest of the consumer and DRS, you may provide acute medical care before determining eligibility. Document the rationale and obtain area manager approval before providing services.

Example: A consumer is sent from home to another town for an evaluation. There, the person develops acute appendicitis requiring immediate surgery. You may provide this acute medical care.

The eligibility decision must be

made and entered in the electronic case management system within 60 days of the date the application is signed, and
based on facts that are supported by case notes or documents in the case file.

The rationale for the eligibility decision must be evident in the electronic case management system.

When making an eligibility decision, you may have diagnostics and other records that were not available at the time of application. Use all pertinent information to review and, if necessary, update the consumer’s disability classification and to determine if the consumer has a significant disability. Document your decision that the consumer either has or does not have a significant disability. You may change the significance designation at any time during the life of the case. See Chapter 11: Technical Information and References, 11.2.1 Selecting a Disability Classification and 11.2.2 Establishing the Significance of the Disability.

3.2 Presumption of Eligibility for Social Security Recipients

*Recipients of Social Security disability benefits [that is, Supplemental Security Income (SSI) and/or Social Security Disability Insurance (SSDI)] are

presumed eligible for VR services*, and
determined eligible immediately after receipt of benefits is proven unless there is a question about the consumer's ability to achieve an employment outcome.

*Based on 34 CFR Section 361.42(a)(3)(i)

When the consumer asserts eligibility for SSI or SSDI, but is unable to provide evidence such as an award letter, see Chapter 4, Assessing and Planning, 4.10.3 Verification of Social Security Benefits for further information on obtaining proof of benefits.

If there is a question about the consumer's ability to achieve an employment outcome, complete an extended evaluation plan using a trial work experience. See Chapter 4, Assessing and Planning, 4.9 Developing an IPE for Extended Evaluation.

See the Social Security Eligibility Flowchart in the DRS Counselors' Toolbox for more information.

3.3 Basic Eligibility Criteria

*To decide whether a consumer is eligible for VR services, you must

determine that the consumer has a physical or mental impairment; (first criterion);
determine that the impairment constitutes or results in a substantial impediment to employment (second criterion);
establish that the consumer requires VR services to prepare for, enter, engage in, or retain gainful employment consistent with the consumer's strengths, resources, priorities, concerns, abilities, capabilities, interests, and informed choice (third criterion); and
presume that the consumer can achieve an employment outcome, unless an extended evaluation demonstrates by clear and convincing evidence that the consumer cannot achieve an employment outcome because of the severity of the consumer's disability. (fourth criterion)*

*Based on 34 CFR Section 361.42(a)(1)

3.3.1 Determining Eligibility by the 60th Day

*You must determine a consumer's eligibility for the VR program by the 60th day after the date that the application is signed, unless you

need to extend the time, or
cannot determine the consumer's ability to achieve an employment outcome without an extended evaluation.* See Chapter 4, Assessing and Planning, 4.9 Developing an IPE for Extended Evaluation.

*Based on 34 CFR Section 361.41(b)(1)

3.3.2 Time Extension

*When you cannot determine eligibility by the 60th day after the date the consumer signs the application,

inform the consumer of the exceptional and unforeseen circumstances (beyond DRS control) that are delaying eligibility determination,
obtain agreement from the consumer that the extension of time is necessary, and
document the reasons for the extension of time* in the electronic case management system or in a case note.

*Based on 34 CRF Section 361.41(b)(1)(i)

3.3.3 Ineligibility Determination

Determine the consumer to be ineligible and refer the consumer to any available programs that may be able to help him or her if, after reviewing all records and considering all diagnostic data, you conclude that the consumer does not

have a physical or mental impairment;
have a substantial impediment to employment;
require VR services to obtain or retain employment; or
after extended evaluation, have the ability to achieve an employment outcome.

See 3.11.5 Closing a Case after Determining the Consumer Ineligible.

3.3.4 Determining whether Records Are Current

Evaluate records based on a thorough understanding of

the consumer's medical and/or psychological treatment, if any; and
significant life events that have occurred since the date of the existing records.

If the records sufficiently and accurately reflect the consumer's current functioning and impediments to employment, you may consider them current.

3.4 First Eligibility Criterion: Presence of an Impairment

The first eligibility criterion is that the consumer must have a physical or mental impairment.

3.4.1 Establishing the Presence of an Impairment

A “physical or mental impairment” is an injury, disease, or other condition that results in persistent functional limitations.

For observable impairments such as amputation, wheelchair usage, deafness, or deformity, you do not need medical reports to determine their presence. You may not need to determine the nature, extent, and significance of an observable condition until the IPE planning process.

For nonobservable impairments, obtain additional examinations or evaluations if records are unavailable or insufficient. In most cases a functional capacity assessment is not required to determine the presence of an impairment.

You may use the DARS3106, Work Restriction Checklist to gather information about a consumer's physical limitations from a treating physician or evaluating specialist.

See Tips on using the DARS3106, Work Restriction Checklist.

For impairments that the consumer reports are unchanged for several years, use available medical and other reports (even if they are several years old) to determine their presence.

For conditions that appear to be unstable or acute, consult with the local medical consultant (LMC) or Central Office program specialist as needed.

3.4.2 Determining There Is No Impairment

Do not purchase evaluations if

neither the consumer nor the referral source alleges a current impairment; and
following a thorough initial interview, there is still no evidence of an impairment.

If you determine that the consumer does not have an impairment, then the consumer is

ineligible, and
referred to available community resources or programs to meet the consumer's needs.

See 3.11.5 Closing a Case after Determining the Consumer Ineligible.

3.5 Second Eligibility Criterion: Substantial Impediment to Employment

The second eligibility criterion is that the physical or mental impairment must constitute or result in a substantial impediment to employment.

3.5.1 Establishing a Substantial Impediment to Employment

Although a consumer may have an impairment that limits certain functions, there may not be an associated substantial impediment to employment.

A substantial impediment to employment exists when the impairment and resultant functional limitations

prevent the consumer from obtaining a job consistent with the consumer's abilities;
significantly interfere with preparing for employment consistent with the consumer's abilities;
cause the consumer to need special help to perform job duties; or
interfere with job retention; for example, the consumer
- has lost a job because of the impairment, or
- is unable to perform essential job duties.

For additional information about a consumer’s condition and treatment and the condition’s possible impact on employment, consult the Medical Disability Guidelines.

If a consumer's physical or mental impairment constitutes or results in a substantial impediment to employment, the consumer has a disability for purposes of the VR program.

See also Eligibility for Employed Consumers.

3.5.2 Determining There Is No Impediment to Employment

If you determine that the consumer does not have a substantial impediment to employment, then the consumer is

ineligible, and
referred to available community resources or programs to meet the consumer's needs.

See 3.11.3 Procedure for Closing a Case before Determining Eligibility.

3.6 Third Eligibility Criterion: Requires VR Services

The third eligibility criterion is that the consumer requires VR services to prepare for, enter, engage in, or retain an employment outcome consistent with the consumer's strengths, resources, priorities, concerns, abilities, capabilities, interests, and informed choice.

VR services are required when

one or more VR services are expected to
- have a substantial impact on the consumer's disability and resultant functional limitations; or
- reduce the impediment to employment, thus allowing the consumer to prepare for, obtain, retain, or regain employment consistent with the consumer's capabilities and abilities; and
the consumer cannot access these services elsewhere without VR intervention.

3.7 Fourth Eligibility Criterion: Presumed Capable of Employment

The fourth eligibility criterion is that it can be presumed that the consumer can benefit in terms of an employment outcome from VR services.

You must presume the consumer capable of achieving an employment outcome, unless clear and convincing evidence obtained during an extended evaluation demonstrates that the consumer cannot attain an employment outcome after receiving VR services because of the severity of the consumer's disability. See Chapter 4, Assessing and Planning, 4.9 Developing an IPE for Extended Evaluation.

3.8 Required Assessments and Policies for Selected Conditions

The following sections include information about obtaining and using assessments and a table of

condition-specific assessments or related documentation required before the counselor can make an eligibility determination, and
policy governing eligibility for consumers with those conditions.

3.8.1 Assessments

Obtain required assessments before determining eligibility to establish an impairment that has been diagnosed by a qualified professional.

Review available records and determine if the required assessments or equivalent documentation exist.
If not, purchase the required assessments and/or obtain the required documentation.

Exception: If you can observe a consumer’s impairment and can determine that he or she has an impairment-related impediment to employment, the first two eligibility criteria have been satisfied. In these cases, no assessments are required before making your eligibility decision.

3.8.2 Table of Required Assessments and Policy for Selected Conditions

Note: On September 1, 2010, the Table of Required Assessments and Policy for Selected Conditions was revised to include only content related to eligibility determination. Information about services was moved to 5.3.4 Physical Restoration Services or Procedures with Special Requirements. Other deleted information is covered in different sections of policy. Use links in the table to access these locations.

Eligibility determinations must comply with the condition-specific assessments and policy in the following table. Review this table before making an eligibility determination.

Condition	Required Assessments	Policy
HIV/AIDS See Counselor Desk Reference, Chapter 1: AIDS/HIV.		DRS does not provide HIV testing because it is available through the Texas Department of State Health Services HIV and STD Program. See also Chapter 5: Services, 5.3.1 Physical Restoration Services/Services Not Authorized.
Alcohol and drug abuse or dependence See Counselor Desk Reference, Chapter 44: Substance Abuse.		Before you determine eligibility, the consumer must have documented evidence of currently maintaining sobriety; being sober for at least 30 consecutive days, excluding any incarceration time; and current involvement in a therapeutic program. Exception: Recipients of Social Security benefits are automatically eligible for services. But before you develop an IPE, the consumer must have documented evidence of currently maintaining sobriety; being sober for at least 30 consecutive days, excluding any incarceration time; and current involvement in a therapeutic program. See Chapter 4: Assessing and Planning, 4.4.7 Defining Roles and Responsibilities for guidance about how the consumer’s responsibilities are reflected in the IPE. Exception: A consumer with a coexisting brain injury who is unable to benefit from other types of therapeutic programs may use a DRS-sponsored post-acute brain injury rehabilitation program to establish 30 days of sobriety and involvement in a therapeutic program.
Allergies See Counselor Desk Reference, Chapter 24: Respiratory Disease.	Evaluation by physician trained in allergic conditions.
Amputation See Counselor Desk Reference, Chapter 2: Amputations.	When considering a prosthesis, provide an orthopedist or physiatrist exam if the amputation is recent, or residual limb problems exist.
Asthma See Counselor Desk Reference, Chapter 24: Respiratory Disease.	Evaluation by physician trained in allergic conditions, or Exam by physician specializing in lung diseases (Use DARS3102, Pulmonary Evaluation Report)
Back disorders See Counselor Desk Reference, Chapter 4: Back Disorders.	You must have treating physician's radiographic evidence of an abnormality, or medical history of back surgery, or clear diagnosis and prognosis based on physical findings; and medical documentation of functional limitations persisting for at least 90 days before eligibility.	See information about back surgery and steroid injections in Chapter 5: Services, 5.3.4 Physical Restoration Services or Procedures with Special Requirements.
Cardiac disabilities See Counselor Desk Reference, Chapter 7: Cardiac Disorders.		See informational about cardiac catheterization or angiography in Chapter 5: Services, 5.3.4 Physical Restoration Services or Procedures with Special Requirements.
Cosmetic disfigurement		Missing front teeth are not considered an impairment for the purpose of determining eligibility. See information about dental treatment, including maxillofacial services, in Chapter 5: Services, 5.3.4. Physical Restoration Services or Procedures with Special Requirements.
Deaf See Counselor Desk Reference, Chapter 15: Hearing Impairments. See the Hard of Hearing section also.	Use DARS3105, Hearing Evaluation Report, Section 1. Consumer Questionnaire.	Chapter 11: Technical Information and References, 11.6.4 Tables of Categories for Disability Coding/Sensory and/or Communicative Impairments for applicable diagnostic criteria. See information about cochlear implant in Chapter 5: Services, 5.3.4 Physical Restoration Services or Procedures with Special Requirements.
Diabetes mellitus See Counselor Desk Reference, Chapter 11: Diabetes Mellitus.	Treating physician's prognosis for adequate diabetic control.
Ear diseases and other conditions of the auditory system that result in a hearing loss See Counselor Desk Reference, Chapter 15: Hearing Impairments.	Current evaluation by an otologist, otolaryngologist, or ENT/EENT specialist. Use DARS3105, Hearing Evaluation Report, Section 2. Otological Examination report or the equivalent. Current evaluation by licensed audiologist. Use DARS3105, Hearing Evaluation Report, Section 3. Audiometric Evaluation, or the equivalent. Documentation of social, educational, and/or psychological hearing loss implications from licensed audiologist or specialist in deafness rehabilitation.	Ear diseases and other conditions of the auditory system may cause substantial impediments to employment if the consumer has a "ski slope" audiogram, profound unilateral hearing loss, vocational objective requiring a high degree of hearing sensitivity, poor adjustment to hearing loss, multiple disabilities, or other unusual conditions.
End-stage renal condition See Counselor Desk Reference, Chapter 23: End-Stage Renal Disease.	Medical records from treating physician for consumers undergoing dialysis: details relating to dialysis, symptoms pre- and post-dialysis treatments, and physical exertion limits; or consumers who have received a transplant: medications taken, and side-effects of anti-rejection medications; or specialist exam (Use DARS3111, End-Stage Renal Disease Evaluation).	If the underlying cause is diabetes mellitus, systemic lupus erythematosus, or malignant hypertension, first evaluate these conditions for stability and ensure that the consumer is ready to pursue a vocational goal. See also Chapter 5: Services, 5.3.1 Services Not Authorized.
Epilepsy (seizure disorders) See Counselor Desk Reference, Chapter 12: Epilepsy and Seizure Disorders.	Evaluation by a neurologist
Fractures See Counselor Desk Reference, Chapter 13: Fractures: Malunion or Nonunion.		Simple fractures are not considered impairments for the purpose of determining eligibility for VR services. A fracture that has healed abnormally (malunion) or failed to heal (nonunion) may constitute an impairment for eligibility purposes. See Chapter 5: Services, 5.3.1 Physical Restoration Services for policy related to stability of condition. See information about electrical bone stimulators in Chapter 5: Services, 5.3.4 Physical Restoration Services or Procedures with Special Requirements.
Gallbladder disease See Counselor Desk Reference, Chapter 14: Gallbladder Disease.		Obtain area manager approval before you determine eligibility.
Gynecological condition		Obtain area manager approval before you determine eligibility.
Hard of Hearing See Counselor Desk Reference, Chapter 15: Hearing Impairments. See the Deaf section, also.	Audiometric evaluation (including audiogram) that documents level and type of hearing loss. Documentation older than six months may be used to determine eligibility. Use DARS3105, Hearing Evaluation Report, Section 3. Audiometric Evaluation, or the equivalent; and A completed DARS3105, Hearing Evaluation Report, Section 1. Consumer Questionnaire or the equivalent.	See Chapter 11: Technical Information and References, 11.6.4 Table of Categories for Disability/Sensory and/or Communicative Impairments for selecting primary and, if appropriate, secondary disability categories.
Hernia See Counselor Desk Reference, Chapter 17: Hernias.		Obtain area manager approval before you determine eligibility.
Mental illness— psychotic mood, anxiety, or attention deficit disorders See the following chapters in the Counselor Desk Reference: Chapter 31: Anxiety Disorders, Chapter 32: Attention Deficit/Hyperactivity Disorder (ADHD), Chapter 34: Bipolar Disorder and Cyclothymic Disorders, Chapter 35: Depressive Disorders, and Chapter 42: Schizophrenia and Other Psychotic Disorders		Before eligibility is determined, consumers with these disorders must be currently receiving needed medication or therapeutic treatment, or willing to participate in a recommended treatment plan. See Chapter 5: Services, 5.3.6 Mental Restoration Services for information about mental health restoration service guidelines.
Mental illness— somatoform, dissociative, personality, disruptive, adjustment, cognitive, and other mental disorders See the following chapters in the Counselor Desk Reference: Chapter 30: Adjustment Disorders, Chapter 33: Autism Spectrum Disorders, Chapter 36: Dissociative Disorders, Chapter 37: Impulse Control Disorders, Chapter 40: Personality Disorders, and Chapter 43: Somatoform and Factitious Disorders		To be determined eligible, consumers with mental disorders in these categories must be participating, or willing to participate, in a structured program to modify their behavior and approach to employment. See Chapter 5: Services, 5.3.6 Mental Restoration Services for information about mental health restoration service guidelines. Exception: Consumers with autism spectrum disorder (ASD), which is a developmental disability, are not required to participate in a structured program to modify behavior as a condition of eligibility because they do not have a mental illness.
Mental retardation See Counselor Desk Reference, Chapter 39: Mental Retardation.		A consumer has an impairment in adaptive behavior when he or she cannot successfully accomplish two or more of the following: communication, self-care, home living, social and interpersonal skills, use of community resources, self-direction, functional academic skills, work, leisure, and health and safety.
Morbid obesity See Severe (Morbid) Obesity
Obesity		Obesity is not considered an impairment for eligibility determination purposes if it does not meet the criteria of severe (morbid) obesity, that is, a body mass index (BMI) of 40 or greater. See "Severe (morbid) obesity." Obesity may be an attendant factor that affects other established disabilities. See Chapter 5: Services, Weight-Loss Programs for conditions that must be met to sponsor a consumer in a weight loss program. See information about services for severe (morbid) obesity in 5.3.4 Specialized Physical Restoration Programs, and information about weight loss programs in 5.3.5 Specialized Physical Restoration Programs.
Pain, chronic	Assessment must include evaluation indicating that pain cannot be treated conventionally completed by a neurologist, orthopedic surgeon, and/or neurosurgeon.	See information about pain management in Chapter 5: Services, 5.3.4 Specialized Physical Restoration Programs, Pain Management Programs or Pain Clinics.
Pregnancy		Although pregnancy is not an impairment for purposes of eligibility determination, the condition does not prevent a consumer with a disability from receiving services. Ectopic (tubal) pregnancy may be treated only as an intercurrent illness. If the consumer is not receiving medical care for the pregnancy, make proper referral to county hospitals, clinics, private physicians, DSHS Maternal Child Health, or CHIP Perinatal Services. See information about procedures for pregnant consumers in Chapter 5: Services, 5.3.4 Physical Restoration Services or Procedures with Special Requirements.
Severe (Morbid) Obesity See Counselor Desk Reference, Chapter 18: Morbid Obesity.		For obesity to be considered an impairment for eligibility purposes, the consumer must have a body mass index (BMI) of 40 or greater, and physical limitations in work capacity measured by a functional capacity assessment (FCA) performed by a physical or occupational therapist or chiropractor. If the consumer is employed, an occupational or physical therapist must perform a job analysis to determine the functional requirements of the consumer’s job; or unemployed, the consumer must be unable to meet the physical demands of the chosen realistic job goal as defined in Choices. See Chapter 5: Services, 5.3.4. Physical Restoration Services or Procedures with Special Requirements for specific requirements for determining whether severe obesity results in an impediment to employment.
Spinal cord injury See Counselor Desk Reference, Chapter 27: Spinal Cord Injuries.		See information about comprehensive treatment for spinal cord injury in Chapter 5: Services, 5.3.4 Physical Restoration Services or Procedures with Special Requirements.
Traumatic brain injury (TBI) See Counselor Desk Reference, Chapter 5: Brain Injury and Rehabilitation.	Neuropsychological evaluation	When you cannot presume that the consumer is capable of an employment outcome provide services in extended evaluation, and consider using Comprehensive Rehabilitation Services (CRS) funds for hospitalization and other services before you determine eligibility. If a consumer has both a cervical spinal cord injury and substantial brain damage, determine the consumer eligible for VR services only with specific justification in the case file.
Tuberculosis (TB) See Counselor Desk Reference, Chapter 28: Tuberculosis.		Eligibility for VR services requires that the consumer has recovered sufficiently so that he or she is considered "safe" to DRS employees, potential employers, and others. The consumer must have been on medical treatment for at least three weeks, and then have had three consecutive negative cultures; use effective medications, and cooperate in taking them as prescribed; and show definite improvement as ascertained by the physician in charge. The treating physician must state in writing that the person is ready for employment or training. See Chapter 5: Services, 5.3.1 Physical Restoration Services/Comparable Services and Benefits for Restoration Services.
Tumors (masses or growths) See Counselor Desk Reference, Chapter 6: Cancer.	DARS3112, Cancer Disability Medical Report, completed by the referring physician, clinic, or hospital.	Nonpainful lumps in the breast are not considered impairments for the purpose of eligibility determination. Screening procedures for cancer (for example, mammograms or Pap smears of the cervix) are not considered part of the VR diagnostic procedure. Cancers include all carcinomas and sarcomas of the internal organs (muscles, bones, nerves, brain, or glands) and lymphomas, leukemia, etc. The completed DARS3112 must contain information that tells the general prospects for the consumer's life expectancy and work capabilities. If a poor prognosis prevents the case from being accepted, you may decide with the attending physician how the "nonacceptance" will be conveyed to the patient. See Chapter 5: Services, 5.3.1 Physical Restoration Services/Comparable Services and Benefits for Restoration Services for information about cancer treatment resources.
Visual disorders	DARS3104, Visual Evaluation Report	In compliance with Section 91.021, Human Resources Code, a written agreement with the DARS Division for Blind Services (DBS) states that all DRS consumers who are blind or have primary visual impairments are referred to DBS. Copies of medical records obtained for determining eligibility must accompany the referral. When a consumer has multiple disabilities (a visual disorder and other nonvisual impairments), DBS provides VR services if the consumer is legally blind, or the visual impairment is the primary disability. A consumer is legally blind when the consumer has a central visual acuity of 20/200 or less in the better eye with best correction, or visual fields restriction of 20 degrees or less (both eyes). When it is clear that the nonvisual impairment is the primary disability, DRS may provide services. In no instance will DRS extend services to a consumer whose only disability is a visual disorder. When it is not clear whether the visual or nonvisual impairment is the primary disability, the DRS and DBS counselors must decide whether DRS or DBS should serve the case. If the counselors cannot decide, they refer the matter to the appropriate DRS area manager. If the area manager cannot decide, he or she refers the matter to the DRS assistant commissioner. Whenever it is determined that a consumer currently being served by one division is properly the consumer of the other division, the case is closed in the proper status in the transferring division, and the entire case file is made available to the receiving division. Use DARS3104, Visual Evaluation Report.

3.9 Extended Evaluation and/or Trial Work Experience

*Use extended evaluation only to determine whether a consumer with a significant disability can achieve an employment outcome. Extended evaluation must be conducted before you can determine, based on clear and convincing evidence, that a consumer is ineligible for VR services because of the severity of his or her disability.

The extended evaluation is based on a written plan that ensures that the consumer's abilities, capabilities, and capacity to perform work are identified through trial work experiences. See Chapter 4: Assessing and Planning, 4.9 Developing an IPE for Extended Evaluation.

During the extended evaluation period, VR services must be provided in the most integrated setting possible, consistent with the consumer's informed choice.*

*Based on 34 CFR Section 361.42(e)

3.9.1 Determining Clear and Convincing Evidence

*The "clear and convincing evidence" standard of evidence in civil matters is similar to the "beyond a reasonable doubt" standard in criminal matters, but is slightly less rigorous. There must be a high degree of certainty before a person can be found incapable of gainful employment.

Psychological testing alone is not clear and convincing evidence. Clear and convincing evidence might include a description of assessments concluding that the service providers would be unable to meet a consumer's needs because of the severity of the disability.

When the consumer (and/or consumer's representative) does not agree, and if the determination is appealed to an impartial hearing, the impartial hearing officer becomes the ultimate authority on clear and convincing evidence.*

*Based on 34 CFR Section 361.42(e)

3.9.2 Ending Extended Evaluation

*Stop extended evaluation services at any point when

there is sufficient evidence to conclude that the consumer can achieve an employment outcome,
there is clear and convincing evidence that the consumer cannot achieve an employment outcome, or
the consumer is unavailable for services.*

*Based on 34 CFR Section 361.42

3.10 Other Eligibility Considerations

3.10.1 Nondiscrimination

*Determine eligibility for VR services without regard to gender, age, race, religion, color, national origin, type of expected employment outcome, type of disability, source of referral, particular services needed, or anticipated cost of services required by a consumer; however,

a consumer's ineligibility cannot be based solely on a particular disability;* and
consumers under age 16 must be of working age when IPE services are completed.

*Based on 34 CFR Section 361.42(5)(c)(2)

3.10.2 Residency Requirement

*As there is no requirement for how long a consumer must have lived in Texas before being considered for eligibility, you may consider a consumer for eligibility if, at the time of application, the consumer

is present in the state,*
is available for an assessment, and
has a Texas address.

*Based on 34 CFR Section 361.42(5)(c)(1)

3.10.3 Illegal Aliens, Immigrant Aliens, and Nonimmigrant Aliens

Illegal aliens are

persons in the U.S. without legal status, and
ineligible for VR services.

Immigrant aliens

are persons admitted to this country for the purpose of permanent residence; and
must provide documentation in compliance with Chapter 2: Initial Contact and Application, 2.4.2 Identification and Employment Verification Documents before they can be determined eligible for VR services.

Nonimmigrant aliens are

persons admitted to this country for a particular purpose and time period; and
expected to return to their home country upon completing the specified purpose or time period, and include
- visitors for business or pleasure;
- crew of vessels or aircraft;
- representatives of international organizations;
- ambassadors, public ministers, and career diplomatic or consular officers; and
- students pursuing a course of study (most common visas: "FI" and "JI"; no work authorized except work related to the student's academic program).

The alien individual must be available to complete the IPE, which includes suitable employment in the United States. When completion cannot be expected, the individual is not eligible for VR services.

Aliens who are part of the Amnesty Program receive a letter stating that they are not eligible for federal financial assistance. DRS programs are not considered federal financial assistance, so services may be provided if the person is otherwise eligible.

3.10.4 Students

A student who is in special education, or who has received special education or Section 504 services, is *not automatically eligible for VR services.*

*Based on 34 CFR Section 361.42

See "Transition Planning Services (School Program)"

3.11 Closing a Case Ineligible or before Eligibility Determination

3.11.1 Overview

You may close a case before eligibility under either of two circumstances:

without determining eligibility, or
because you determine the consumer ineligible.

Referral to Other Resources

When you close the case before eligibility, refer the consumer to another agency or DRS program for services if the

consumer is available and needs other services; and
needed services are available from another agency or DRS program (for example, Comprehensive Rehabilitation Services, Independent Living Services).

Describe for the consumer the services available from the other agency or program. Contact the agency or program, set up an appointment for the person, and provide the agency or program with information requested about the consumer, when appropriate.

When needed, use Texas Information and Referral Network (Finding Help in Texas) to assist in identifying available resources.

Referral to TWC

Create a service record documenting when a consumer is referred to the Texas Workforce Commission (TWC).

3.11.2 Closing a Case without Determining Eligibility

There are a variety of reasons you may close a case before determining eligibility. See the table in 3.11.4 Reasons for Closing a Case without Determining Eligibility to

select the proper reason for closure, and
find procedures for reason-specific closures.

3.11.3 Procedure for Closing a Case before Determining Eligibility

*Apply the following general closure procedure in all cases closed before determining eligibility:

notify the consumer in writing (if address is known) of the case closure and right of appeal,
ensure that the case file contains the justification for closing the case, and
use appropriate reason for closure* (see 3.11.4 Reasons for Closing a Case without Determining Eligibility).

*Based on 34 CFR Sections 361.43 and 361.57

If extended evaluation was used, then also complete DARS5215, VR Unsuccessful Closure Letter, and send it to the consumer.

3.11.4 Reasons for Closing a Case without Determining Eligibility

After the closure has been processed in the electronic case management system, a closure letter is available to complete, print, and mail to the consumer.

Reason	Definition	Additional Closure Procedure
Death		No notification is required.
Extended Services Not Available	The consumer could benefit from supported employment services, but no source of extended services is available.	Document that you explored comparable benefits, natural supports, community services, etc., and the factors that made it impossible to arrange an agreement for extended support.
Failure to Cooperate	The consumer fails to follow through with the program of services.	Document examples of failure to cooperate, and notify the consumer of rights of appeal, and the availability of the Client Assistance Program (CAP).
Institutionalized	The consumer is admitted to an institution (jail, prison, state school, state hospital, etc.) and is not expected to be available to pursue a DRS program.	Provide information about community-based services where appropriate.
Other	Services may be denied or ended for other reasons. For example, the consumer has achieved employment without substantial VR services.	Document the reason for closure.
Referred to Another Agency or DARS Program	The services of another agency are more appropriate than a DRS program.	Follow procedures in 3.11.1 Overview/Referral to Other Resources
Refused Services	The consumer clearly does not intend to follow through with the program of services.	Make sure the consumer knows about the services available and persists in refusing services.
Transportation Not Feasible	Suitable transportation for accepting or maintaining employment is either not available or not feasible (too costly, inaccessible, etc.).	Document that you considered transportation alternatives, etc., and the reasons they were not available or feasible.
Unable to Locate or Moved Out of State	Contact with the consumer is lost after documented repeated attempts by telephone and mail over a reasonable period have failed. Also used when the consumer moves out of state and gives little evidence of returning any time soon.	Document your attempts to contact the consumer over a reasonable period. If the consumer moves to another state and additional VR services are necessary, when possible, provide the consumer with the name and address of the VR agency office nearest the new residence (obtain from the appropriate state office of VR services); and upon request, provide the VR agency with copies of appropriate case folder materials.
Unfavorable Medical Prognosis	Medical information shows that the consumer’s medical condition is rapidly progressive or terminal.	Consult with the treating physician to determine whether the consumer knows the prognosis, and how the closure information should be communicated.

3.11.5 Closing a Case after Determining the Consumer Ineligible

There are four reasons a case may be closed as ineligible:

no impediment to employment,
no disabling condition,
VR services not required, and
disability is too severe.

*Before closing any case as ineligible,

discuss with the consumer and/or the consumer's representative the reason for the closure and
ensure that the case reflects the justification for the decision.*

*Based on 34 CFR Section 361.43(a)

Consult the table in 3.11.6 Reasons and Procedure for Closing a Case Because of Ineligibility to

select the proper reason for closure, and
find the reason-specific closure procedure.

3.11.6 Reasons and Procedure for Closing a Case Because of Ineligibility

Reason	Definition	Procedure
Disability Too Severe	You determine, based on clear and convincing evidence obtained during the extended evaluation, that the severity of the disability or the resulting vocational impediments prevent VR services from benefiting the consumer in terms of employment.	Use this reason for closure only after an extended evaluation; then complete the following steps. before case closure, give the consumer an opportunity to fully discuss the decision, including the right of appeal; document clear and convincing evidence of ineligibility in accordance with 3.9.1 Determining Clear and Convincing Evidence; complete the certification of ineligibility, DARS5212, VR Severity of the Disability, and send it to the consumer. This serves as the IPE amendment and documents the reason for case closure; and refer the consumer to a local nonintegrated (that is, extended employment) provider, when available. *Based on 34 CFR Sections 361.57 and 361.43 Anticipate an annual computer-generated alert to review the case for reconsideration of eligibility.
No Disabling Condition	The assessment for eligibility reveals that the consumer does not have a disability.	Take the following actions to close the case: before case closure, give the consumer an opportunity to fully discuss the decision, including the right of appeal; refer the consumer to another DRS program, or other programs that are part of workforce development (programs that can address the consumer's training or employment needs), and document the referral in a case note; notify the consumer in writing of his or her ineligibility using DARS5104, VR Ineligibility Notice, and include reason(s) for the determination of ineligibility, right of appeal, and availability of the Client Assistance Program (CAP); and use the appropriate reason for closure. *Based on 34 CFR Sections 361.57 and 361.43
No Impediment to Employment	The assessment for eligibility reveals no substantial impediment to employment.
VR Services Not Required	The consumer does not require VR services to prepare for, obtain, retain, or regain employment; already is receiving the needed services; or already has available the needed services without DRS providing, paying for, arranging, or coordinating the services.

In no case may you determine a consumer to be ineligible because of the severity of the disability without an extended evaluation.

3.11.7 Twelve-Month Review of Ineligibility Determination Based on Severity of the Disability

*Review within 12 months (and annually thereafter, if requested by the consumer or, if appropriate, by the consumer's representative) any ineligibility determination that is based on a finding that the consumer is incapable of achieving an employment outcome due to the severity of the disability.*

*Based on 34 CFR Section 361.43(e)