Virginia Law

The following words and terms when used in this chapter shall have the following meanings, unless the context clearly indicates otherwise.

"Act" means the Rehabilitation Act of 1973 (29 USC § 701 et seq.), as amended.

"Applicant" means an individual who submits an application for vocational rehabilitation services.

"Appropriate modes of communication" means specialized aids and supports that enable an individual with a disability to comprehend and respond to information that is being communicated. Appropriate modes of communication include the use of interpreters, open and closed captioned videos, specialized telecommunications services and audio recordings, Brailled and large-print materials, materials in electronic formats, augmentative communication devices, graphic presentations, and simple language materials.

"Assessment for determining eligibility and vocational rehabilitation needs" means, as appropriate in each case, a review of existing data as described in 22VAC30-20-30 to determine if an individual meets the eligibility requirements for vocational rehabilitation services as described in 22VAC30-20-40, and to assign priority for an order of selection described in 22VAC30-20-90.

"Assistive technology" means any item, piece of equipment, or product system, whether acquired commercially off the shelf, modified, or customized, that is used to increase, maintain, or improve the functional capabilities of an individual with a disability.

"Assistive technology service" means any service that directly assists an individual with a disability in the selection, acquisition, or use of an assistive technology device, including:

1. The evaluation of the needs of an individual with a disability, including a functional evaluation of the individual in his customary environment;

2. Purchasing, leasing, or otherwise providing for the acquisition by an individual with a disability of an assistive technology device;

3. Selecting, designing, fitting, customizing, adapting, applying, maintaining, repairing, or replacing assistive technology devices;

4. Coordinating and using other therapies, interventions, or services with assistive technology devices, such as those associated with existing education and rehabilitation plans and programs;

5. Training or technical assistance for an individual with a disability or, if appropriate, the family members, guardians, advocates, or authorized representatives of the individual; and

6. Training or technical assistance for professionals (including individuals providing education and rehabilitation services), employers, or others who provide services to, employ, or are otherwise substantially involved in the major life functions of individuals with disabilities, to the extent that training or technical assistance is necessary to the achievement of an employment outcome by an individual with a disability.

"Audiological examination" means the testing of the sense of hearing.

"Clear and convincing evidence" means that the designated state unit shall have a high degree of certainty before it can conclude that an individual is incapable of benefiting from services in terms of an employment outcome. The clear and convincing standard constitutes the highest standard used in our civil system of law and is to be individually applied on a case-by-case basis. The term "clear" means unequivocal. Given these requirements, a review of existing information generally would not provide clear and convincing evidence. For example, the use of an intelligence test result alone would not constitute clear and convincing evidence. Clear and convincing evidence might include a description of assessments, including situational assessments and supported employment assessments, from service providers who have concluded that they would be unable to meet the individual's needs due to the severity of the individual's disability. The demonstration of clear and convincing evidence must include, if appropriate, a functional assessment of skill development activities, with any necessary supports (including assistive technology), in real life settings. (S. Rep. No. 357, 102d Cong., 2d. Sess. 37-38 (1992))

"Client Assistance Program" means the program located within the disAbility Law Center of Virginia for the purpose of advising applicants or eligible individuals about all available services under the Act, and to assist applicants and eligible individuals in their relationship with programs, projects, and facilities providing vocational rehabilitation services.

"Commissioner" means the Commissioner of the Department for Aging and Rehabilitative Services.

"Community rehabilitation program" means a program that directly provides or facilitates the provision of one or more of the following vocational rehabilitation services to individuals with disabilities to enable those individuals to maximize their opportunities for employment, including career advancement:

1. Medical, psychiatric, psychological, social, and vocational services that are provided under one management;

2. Testing, fitting, or training in the use of prosthetic and orthotic devices;

3. Recreational therapy;

4. Physical and occupational therapy;

5. Speech, language, and hearing therapy;

6. Psychiatric, psychological, and social services, including positive behavior management;

7. Assessment for determining eligibility and vocational rehabilitation needs;

8. Rehabilitation technology;

9. Job development, placement, and retention services;

10. Evaluation or control of specific disabilities;

11. Orientation and mobility services for individuals who are blind;

12. Extended employment;

13. Psychosocial rehabilitation services;

14. Supported employment services and extended services;

15. Customized employment;

16. Services to family members, if necessary, to enable the applicant or eligible individual to achieve an employment outcome;

17. Personal assistance services; or

18. Services similar to the services described in subdivisions 1 through 17 of this definition.

For the purposes of this definition, the word "program" means an agency, organization, or institution, or unit of an agency, organization, or institution that directly provides or facilitates the provision of vocational rehabilitation services as one of its major functions.

"Comparable services and benefits" means services and benefits, including accommodations and auxiliary aids and services, that are provided or paid for, in whole or in part, by other federal, state, or local public agencies, by health insurance, or by employee benefits; available to the individual at the time needed to ensure the individual's progress toward achieving the employment outcome in the individual's individualized plan for employment; and commensurate to the services that the individual would otherwise receive from the vocational rehabilitation agency. For the purposes of this definition, comparable benefits do not include awards and scholarships based on merit.

"Competitive integrated employment" means work that (i) is performed on a full-time or part-time basis (including self-employment) and for which an individual is compensated at or above the rate required under state or local minimum wage law for the place of employment but not less than the customary wage and level of benefits paid by the employer for the same or similar work performed by individuals without disabilities in comparable positions who have similar training, experience, and skills; (ii) in the case of an individual who is self-employed, yields an income that is comparable to the income received by other individuals who are not individuals with disabilities and who are self-employed in similar occupations or similar tasks and who have similar training, experience, and skills; (iii) is typically found in the community where the employee with a disability interacts for the purpose of performing the duties of the position with other individuals without disabilities to the same extent that employees who do not have disabilities interact in comparable positions; and (iv) presents, as appropriate, opportunities for advancement that are similar to those for other individuals who are not individuals with disabilities and who have similar positions.

"Customized employment" means competitive integrated employment based on the unique strengths, needs, and interests of an individual with a significant disability, which is designed to meet the specific abilities of the individual with a significant disability and the business needs of the employer and is carried out through flexible strategies, such as (i) job exploration by the individual; (ii) customizing a job description based on current employer needs or on previously unidentified and unmet employer needs; (iii) developing a set of job duties, a work schedule and job arrangements, and specifics of supervision (including performance evaluation and reviews) and determining job location; (iv) using a professional representative chosen by the individual, or if elected self-representation, to work with an employer to facilitate placement; and (v) providing services and supports at the job location.

"Department" means the Department for Aging and Rehabilitative Services. The department is considered the "designated state agency" or "state agency," meaning the sole state agency designated in accordance with 34 CFR 361.13(a) to administer or supervise local administration of the state plan for vocational rehabilitation services. The department also is considered the "designated state unit" or "state unit," meaning the state agency, vocational rehabilitation bureau, division, or other organizational unit that is primarily concerned with vocational rehabilitation or vocational and other rehabilitation of individuals with disabilities and that is responsible for the administration of the vocational rehabilitation program of the state agency as required under 34 CFR 361.13(b), or the state agency that is primarily concerned with vocational rehabilitation or vocational and other rehabilitation of individuals with disabilities.

"Eligible individual" means an applicant for vocational rehabilitation services who meets the eligibility requirements of 22VAC30-20-40.

"Employment outcome" means, with respect to an individual, entering, advancing in, or retaining full-time or, if appropriate, part-time competitive integrated employment, as defined in this section (including customized employment, self-employment, telecommuting, or business ownership), or supported employment as defined in this section, that is consistent with an individual's strengths, resources, priorities, concerns, abilities, capabilities, interests, and informed choice. (34 CFR 361.5(c)(15))

"Extended employment" means work in a nonintegrated or sheltered setting for a public or private nonprofit agency or organization that provides compensation in accordance with the Fair Labor Standards Act (29 USC § 201 et seq.). (34 CFR 361.5(c)(18))

"Extended services" as used in the definition of "supported employment" means ongoing support services and other appropriate services that are (i) needed to support and maintain an individual with a most significant disability in supported employment; (ii) organized or made available, singly or in combination, in such a way as to assist an eligible individual in maintaining supported employment; (iii) based on the needs of an eligible individual, as specified in an individualized plan for employment; (iv) provided by a state agency, a private nonprofit organization, employer, or any other appropriate resource after an individual with a most significant disability has made the transition from support provided by the department; and (v) provided to a youth with a most significant disability by the department in accordance with requirements set forth in 22VAC30-20-110 and 22VAC30-20-120 of this chapter and 34 CFR Part 363 for a period of time not to exceed four years, or at such time a youth reached age 25 years and no longer meets the definition of youth with a disability in this section, whichever occurs first.

"Extreme medical risk" means a probability of substantially increasing functional impairment or death if medical services, including mental health services, are not provided expeditiously.

"Family member" or "member of the family" means an individual (i) who is either a relative or guardian of an applicant or eligible individual, or lives in the same household as an applicant or eligible individual; (ii) who has a substantial interest in the well-being of that individual; and (iii) whose receipt of vocational rehabilitation services is necessary to enable the applicant or eligible individual to achieve an employment outcome.

"Higher education" means training or training services provided by universities, colleges, community or junior colleges, vocational schools, technical institutes, or hospital schools of nursing.

"IDEA" means the federal Individuals with Disabilities Education Act (20 USC § 1400 et seq.).

"Impartial hearing officer" means an individual who is not an employee of a public agency (other than an administrative law judge, hearing examiner, or employee of an institution of higher education); is not a member of the State Rehabilitation Council for the department; has not been involved previously in the vocational rehabilitation of the applicant or recipient of services; has knowledge of the delivery of vocational rehabilitation services, the vocational rehabilitation portion of the unified or combined state plan, and the federal and state regulations governing the provision of services; has received training with respect to the performance of official duties; and has no personal, professional, or financial interest that would be in conflict with the objectivity of the individual. An individual is not considered to be an employee of a public agency for the purposes of this definition solely because the individual is paid by the agency to serve as a hearing officer. (34 CFR 361.5(c)(24))

"Individual who is blind" means a person who is blind within the meaning of applicable state law.

"Individual with a disability," except as provided in 34 CFR 361.5(c)(28), means an individual (i) who has a physical or mental impairment; (ii) whose impairment constitutes or results in a substantial impediment to employment; and (iii) who can benefit in terms of an employment outcome from the provision of vocational rehabilitation services. (34 CFR 361.5(c)(27))

"Individual with a most significant disability" means an individual with a significant disability who meets the department's criteria for an individual with a most significant disability. (34 CFR 361.5(c)(29))

"Individual with a significant disability" means an individual with a disability (i) who has a severe physical or mental impairment that seriously limits one or more functional capacities (such as mobility, communication, self-care, self-direction, interpersonal skills, work tolerance, or work skills) in terms of an employment outcome; (ii) whose vocational rehabilitation can be expected to require multiple vocational rehabilitation services over an extended period of time; and (iii) who has one or more physical or mental disabilities resulting from amputation, arthritis, autism, blindness, burn injury, cancer, cerebral palsy, cystic fibrosis, deafness, head injury, heart disease, hemiplegia, hemophilia, respiratory or pulmonary dysfunction, intellectual disability, mental illness, multiple sclerosis, muscular dystrophy, musculoskeletal disorders, neurological disorders (including stroke and epilepsy), spinal cord conditions (including paraplegia and quadriplegia), sickle cell anemia, specific learning disability, end-stage renal disease, or another disability or combination of disabilities determined on the basis of an assessment for determining eligibility and vocational rehabilitation needs to cause comparable substantial functional limitation. (34 CFR 361.5(c)(30))

"Individual's representative" means any representative chosen by an applicant or eligible individual, as appropriate, including a parent, guardian, other family member, or advocate, unless a representative has been appointed by a court to represent the individual, in which case the court-appointed representative is the individual's representative. (34 CFR 361.5(c)(31))

"Integrated setting," with respect to the provision of services, means a setting typically found in the community in which applicants or eligible individuals interact with nondisabled individuals other than nondisabled individuals who are providing services to those applicants or eligible individuals. "Integrated setting," with respect to an employment outcome, means a setting typically found in the community where the employee with a disability interacts, for the purposes of performing the duties of the position, with other employees within the particular work unit and the entire work site, and, as appropriate to the work performed, other persons (e.g., customers and vendors) who are not individuals with disabilities (not including supervisory personnel or individuals who are providing services to such employee) to the same extent that employees who are not individuals with disabilities and who are in comparable positions interact with these persons. (34 CFR 361.5(c)(32))

"Local workforce development board" means a local board as defined in § 3 of the Workforce Innovation and Opportunity Act (20 USC § 3101 et seq.). (34 CFR 361.5(c)(33))

"Maintenance" means monetary support provided to an individual for expenses, such as food, shelter, and clothing, that are in excess of the normal expenses of the individual and that are necessitated by the individual's participation in an assessment for determining eligibility and vocational rehabilitation needs or the individual's receipt of vocational rehabilitation services under an individualized plan for employment. (34 CFR 361.5(c)(34))

"Mediation" means the act or process of using an independent third party to act as a mediator, intermediary, or conciliator to assist persons or parties in settling differences or disputes prior to pursuing formal administrative or other legal remedies. Mediation under the program must be conducted in accordance with the requirements in 34 CFR 361.57(d) by a qualified impartial mediator. (34 CFR 361.5(c)(35))

"Nonprofit," with respect to a community rehabilitation program, means a community rehabilitation program carried out by a corporation or association, no part of the net earnings of which inures, or may lawfully inure, to the benefit of any private shareholder or individual and the income of which is exempt from taxation under § 501(c)(3) of the Internal Revenue Code of 1986. (34 CFR 361.5(c)(36))

"One-stop center" means a center established under the Workforce Innovation and Opportunity Act (20 USC § 3101 et seq.) and designed to provide a full range of assistance to job seekers. The centers offer training, career counseling, job listings, and similar employment related services.

"Ongoing support services," as used in the definition of "supported employment," means services that are needed to support and maintain an individual with a most significant disability, including a youth with a most significant disability, in supported employment; identified based on a determination by the department of the individual's needs as specified in an individualized plan for employment; and furnished by the department from the time of job placement until transition to extended services, unless post-employment services are provided following transition, and thereafter by one or more extended services providers throughout the individual's term of employment in a particular job placement. These services shall include an assessment of employment stability and provision of specific services or the coordination of services at or away from the worksite that are needed to maintain stability based on, at a minimum, twice-monthly monitoring at the worksite of each individual in supported employment, or if under specific circumstances, especially at the request of the individual, the individualized plan for employment provides for off-site monitoring, twice-monthly meetings with the individual. These services shall consist of any particularized assessment supplementary to the comprehensive assessment of rehabilitation needs described in subsection A of 22VAC30-20-100; the provision of skilled job trainers who accompany the individual for intensive job skill training at the worksite; job development and training; social skills training; regular observation or supervision of the individual; follow-up services including regular contact with the employers, the individuals, the parents, family members, guardians, advocates or authorized representatives of the individuals, and other suitable professional and informed advisors in order to reinforce and stabilize the job placement; facilitation of natural supports at the worksite; any other service identified in the scope of vocational rehabilitation services for individuals described in 22VAC30-20-120; or any service similar to the foregoing services. (34 CFR 361.5(c)(37))

"Personal assistance services" means a range of services, including, among other things, training in managing, supervising, and directing personal assistance services, provided by one or more persons designed to assist an individual with a disability to perform daily living activities on or off the job that the individual would typically perform without assistance if the individual did not have a disability. The services must be designed to increase the individual's control in life and ability to perform everyday activities on or off the job. The services must be necessary to the achievement of an employment outcome and may be provided only while the individual is receiving other vocational rehabilitation services. The services may include training in managing, supervising, and directing personal assistance services. (34 CFR 361.5(c)(38))

"Physical and mental restoration services" means corrective surgery or therapeutic treatment that is likely, within a reasonable period of time, to correct or modify substantially a stable or slowly progressive physical or mental impairment that constitutes a substantial impediment to employment; diagnosis of and treatment for mental or emotional disorders by qualified personnel in accordance with state licensure laws; dentistry; nursing services; necessary hospitalization (either inpatient or outpatient care) in connection with surgery or treatment and clinic services; drugs and supplies; prosthetic, orthotic, or other assistive devices, including hearing aids; eyeglasses and visual services, including visual training, and the examination and services necessary for the prescription and provision of eyeglasses, contact lenses, microscopic lenses, telescopic lenses, and other special visual aids provided by the department in accordance with the cooperative agreement established with the Department for the Blind and Vision Impaired and prescribed by personnel that are qualified in accordance with state licensure laws; podiatry; physical therapy; occupational therapy; speech or hearing therapy; mental health services; treatment of either acute or chronic medical complications and emergencies that are associated with or arise out of the provision of physical and mental restoration services or that are inherent in the condition under treatment; special services for the treatment of individuals with end-stage renal disease, including transplantation, dialysis, artificial kidneys, and supplies; and other medical or medically related rehabilitation services.

"Physical or mental impairment" means any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological, musculoskeletal, special sense organs, respiratory (including speech organs), cardiovascular, reproductive, digestive, genitourinary, hemic, and lymphatic, skin, and endocrine; or any mental or psychological disorders such as intellectual disability, organic brain syndrome, emotional or mental illness, and specific learning disabilities. (34 CFR 361.5(c)(40))

"Post-employment services" means one or more of the services identified in 22VAC30-20-120 that are provided subsequent to the achievement of an employment outcome and that are necessary for an individual to maintain, regain, or advance in employment consistent with the individual's unique strengths, resources, priorities, concerns, abilities, capabilities, interests, and informed choice. (34 CFR 361.5(c)(41))

"Pre-employment transition services" means the required activities and authorized activities specified in 34 CFR 361.48(a)(2) and (3). (34 CFR 361.5(c)(42))

"Prevocational training" means individual and group instruction or counseling, the controlled use of varied activities, and the application of special behavior modification techniques. Individuals or patients are helped to (i) develop physical and emotional tolerance for work demands and pressures, (ii) acquire personal-social behaviors which would make them acceptable employees and coworkers on the job, and (iii) develop the basic manual, academic, and communication skills needed to acquire basic job skills.

"Qualified and impartial mediator" means an individual who is not an employee of a public agency (other than an administrative law judge, hearing examiner, employee of a state office of mediators, or employee of an institution of higher education); is not a member of the State Rehabilitation Council for the department; has not been involved previously in the vocational rehabilitation of the applicant or recipient of services; is knowledgeable of the vocational rehabilitation program and the applicable federal and state laws, regulations, and policies governing the provision of vocational rehabilitation services; has been trained in effective mediation techniques consistent with any state approved or recognized certification, licensing, registration, or other requirements; and has no personal, professional, or financial interest that would be in conflict with the objectivity of the individual during the mediation proceedings. An individual serving as a mediator is not considered to be an employee of the department for the purposes of this definition solely because the individual is paid by the department to serve as a mediator. (34 CFR 361.5(c)(43))

"Rehabilitation technology" means the systematic application of technologies, engineering methodologies, or scientific principles to meet the needs of, and address the barriers confronted by, individuals with disabilities in areas that include education, rehabilitation, employment, transportation, independent living, and recreation. The term includes rehabilitation engineering, assistive technology devices, and assistive technology services. (34 CFR 361.5(c)(45))

"State" means the Commonwealth of Virginia.

"State plan" means the vocational rehabilitation services portion of the unified or combined state plan submitted under 34 CFR 361.10.

"State workforce development board" means a state workforce development board as established under § 3 of the Workforce Innovation and Opportunity Act (20 USC 3101 et seq.). (34 CFR 361.5(c)(49))

"Student with a disability" means an individual with a disability in secondary, postsecondary, or other recognized education program who (i) is not younger than the earliest age for the provision of transition services under § 614(d)(1)(A)(i)(VIII) of IDEA, or if the state elects to use a lower minimum age for the receipt of pre-employment transition services under IDEA, is not younger than that minimum age; (ii) is not older than the maximum age allowed by state law for receipt of services under IDEA; and (iii) is eligible for and receiving special education or related services under Part B of IDEA or is a student who is an individual with a disability for purposes of § 504 of the Act. (34 CFR 361.5(c)(51))

"Substantial impediment to employment" means that a physical or mental impairment (in light of attendant medical, psychological, vocational, educational, and other related factors) hinders an individual from preparing for, entering into, engaging in, advancing in, or retaining employment consistent with the individual's abilities and capabilities. (34 CFR 361.5(c)(52))

"Supported employment" means (i) competitive integrated employment , including customized employment, that is individualized and customized, consistent with the unique strengths, abilities, interests, and informed choice of the individual, including ongoing support services for individuals with the most significant disabilities, for whom competitive integrated employment has not historically occurred or for whom competitive integrated employment has been interrupted or intermittent as a result of a significant disability, and who, because of the nature and severity of the individual's disabilities, needs intensive supported employment services and extended services after the transition from support by the department, in order to perform this work. (34 CFR 361.5(c)(53))

"Supported employment services" means ongoing support services, including customized employment, and other appropriate services needed to support and maintain an individual with a most significant disability, including a youth with a most significant disability, in supported employment that are (i) organized and made available, singly or in combination, in such a way as to assist an eligible individual to achieve competitive integrated employment; (ii) based on a determination of the needs of an eligible individual, as specified in an individualized plan for employment; (iii) provided by the department for a period of time not to exceed 24 months, unless under special circumstances the eligible individual and the rehabilitation counselor jointly agree to extend the time to achieve the employment outcome identified in the individualized plan for employment; and (iv) following transition, as post-employment services that are unavailable from an extended services provider and that are necessary to maintain or regain the job placement or advance in employment. (34 CFR 361.5(c)(54))

"Transition services" means a coordinated set of activities for a student or youth with a disability designed within an outcome-oriented process that promotes movement from school to post-school activities, including postsecondary education, vocational training, competitive integrated employment, supported employment, continuing and adult education, adult services, independent living, or community participation. The coordinated set of activities must be based upon the individual student's or youth's needs, taking into account the student's or youth's preferences and interests, and must include instruction, community experiences, the development of employment and other post-school adult living objectives, and, if appropriate, acquisition of daily living skills and functional vocational evaluation. Transition services must promote or facilitate the achievement of the employment outcome identified in the student's or youth's individualized plan for employment and include outreach to and engagement of the parents, or as appropriate, the representative of such a student or youth with a disability. (34 CFR 361.5(c)(55)

"Transportation" means travel and related expenses that are necessary to enable an applicant or eligible individual to participate in a vocational rehabilitation service, including expenses for training in the use of public transportation vehicles and systems. (34 CFR 361.5(c)(56))

"Vocational rehabilitation potential" means the ability of the individual with a disability to benefit in terms of an employment outcome from the provision of vocational rehabilitation services.

"Vocational rehabilitation services" means those services listed in 22VAC30-20-120.

"WIOA" means the federal Workforce Innovation and Opportunity Act (29 USC § 3101 et seq.).

"Youth with a disability" means an individual with a disability who is not younger than 14 years of age and not older than 24 years of age.