Eligibility Standards Under the Rehabilitation Act of 1973


1.    Criterion for Eligibility – An individual is eligible for vocational rehabilitation (“VR”) services if he or she is “an individual with a disability.”  29 U.S.C. § 722(a)(1).


2.    An “individual with a disability” means one who (i) has a physical or mental impairment that is a substantial impediment to employment and (ii) can benefit “in terms of an employment outcome” from VR services.  29 U.S.C. § 705(20)(A).


3.    The term “employment outcome” means full or part-time competitive  employment in the integrated labor market (i.e., not subminimum wage jobs in “sheltered workshops”).  29 U.S.C. § 705(11).


4.    Presumption of Benefit – An individual with a disability is presumed to be able to benefit from VR services (and therefore eligible to receive them) unless the Division of Rehabilitation Services of the Hawaii Department of Human Services (“DVR”) can demonstrate by “clear and convincing evidence” that such individual “is incapable of benefitting … due to the severity of the disability….”  29 U.S.C. § 722(a)(2).


5.    In order to rebut the presumption of benefit, DVR must “explore the individual’s abilities, capabilities, and capacity to perform in work situations” through the use of trial work experiences with “appropriate supports” and training provided through DVR.  The trial work experiences must be “of sufficient variety and over a sufficient period of time” to determine eligibility or find clear and convincing evidence that the individual is incapable of benefiting from VR services.


6.    Order of Selection – If DVR lacks sufficient resources to provide VR services to all eligible individuals, Hawaii’s State Plan (submitted in support of its application for VR funding) must show the order to be followed in selecting individuals for services.  Individuals with “the most significant disabilities” must be selected first.  29 U.S.C. § 721(a)(5).


7.    Procedural Safeguards – The State must establish mediation and review through an impartial due process hearing of determinations made by DVR that affect the provision of VR services to applicants or eligible individuals.  Any party aggrieved by a hearings officer’s decision may file an action for review in state or federal court.  29 U.S.C. §722(c).


8.    Attorney’s Fees – Where VR services are denied in violation of Section 504, 29 U.S.C. § 794, the court may award reasonable attorney’s fees to the prevailing party.  29 U.S.C. § 794a(a)(2).


Prepared July 8, 2011