1. (a) Introduction.

   1. (1) The order of selection is a set of criteria prioritizing the order in which VR-eligible individuals will be served if the Division of State Services for the Blind cannot provide services to all eligible individuals.
   2. (2) If an order of selection is implemented and one (1) or more priority categories are closed, eligible consumers (regardless of their category) will continue receiving services so long as they were receiving VR services under an individualized plan for employment (IPE) prior to implementation of the order of selection.

2. (b) Purpose.

   1. (1) The Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq., as amended by Title IV of the Workforce Innovation and Opportunity Act, 29 U.S.C. § 3101 et seq., requires the VR program to serve individuals with the most significant disabilities first when there are not enough resources to serve everyone who is eligible for VR services.
   2. (2) In a process called the order of selection, individuals with the most significant disabilities are given priority over those with less significant disabilities.

3. (c) Individuals eligible for services generally. In order to receive services from the division, an individual must be classified in one (1) of the following categories:

   1. (1) Blindness;
   2. (2) Legal blindness; or

   3. (3)

      1. (A) Visual impairment.
      2. (B) See 25 CAR § 2-401(d).

4. (d) Services while eligibility is assessed.

   1. (1) Applicants for VR services are entitled to an assessment to determine eligibility and priority for VR services.
   2. (2) Diagnostic services, provided in application status, are used to determine eligibility and priority classification.
   3. (3) Services during the eligibility determination process are provided without regard to order of selection.

5. (e) Significant disability. According to Section 7(21)(A) of the Rehabilitation Act of 1973, as amended by the Workforce Innovation and Opportunity Act, an individual with a significant disability is someone:

   1. (1)

      1. (A) Who has a significant physical or mental impairment that seriously limits one (1) 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.
      2. (B) See subsection (h) of this section;
   2. (2) Whose vocational rehabilitation can be expected to require multiple vocational rehabilitation services over an extended period of time; and

   3. (3)

      1. (A) Who has one (1) or more physical or mental disabilities as identified in the Rehabilitation Act of 1973, or any other disability or disabilities that cause comparable substantial functional limitation.
      2. (B) This includes an individual who has one (1) 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, musculo-skeletal disorders, neurological disorders (including stroke and epilepsy), paraplegia, quadriplegia, and other spinal cord conditions, 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, that cause comparable substantial functional limitations.

6. (f) Priority categories.

   1. (1) The Director of the Division of State Services for the Blind will determine the priority levels that will remain open prior to the start of the federal fiscal year based on the availability of its resources.

   2. (2)

      1. (A) Individuals in Priority 1 will be selected first for VR services.
      2. (B) Individuals in Priority 2 will be served only if it is determined that all individuals in Priority 1 can receive services using the resources available.
      3. (C) Individuals in Priority 3 will receive services only if resources are available to serve all individuals in Priorities 1 and 2.

   3. (3) The division will apply the order of selection in the following manner, if needed:

      1. (A)

7. (i) Priority 1, most significant disability.

   1. (ii) Priority 1 includes individuals eligible for the division’s services with the most significant disability whose impairment severely limits four (4) 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 and requires substantial VR services over an extended period of time;

      1. (B)

         1. (i) Priority 2, more significant disability.
         2. (ii) Priority 2 includes individuals eligible for the division’s services with a significant disability whose impairment limits three (3) functional capacities in terms of employment outcome and requires substantial VR services over an extended period of time; and

      2. (C)

         1. (i) Priority 3, significant disability.
         2. (ii) Priority 3 includes individuals eligible for the division’s services with a significant disability whose impairment limits one (1) or two (2) functional capacities in terms of an employment outcome and requires substantial VR services over an extended period of time.

8. (g) Job retention.

   1. (1)

      1. (A) Individuals who are at immediate risk of losing employment may be served outside of the order of selection.
      2. (B) See 34 C.F.R. § 361.36(a)(3)(v).
   2. (2) Immediate need means that an individual would almost certainly lose his or her current job if not provided specific services or equipment in the very near future that would enable him or her to retain that employment.
   3. (3) Only services or equipment needed to maintain that current employment may be provided outside of the order of selection.
   4. (4) If the individual loses their job or chooses a different employment outcome, they will be subject to the order of selection.
   5. (5) Likewise, the order of selection will be applied to any services for the consumer that are not job retention services.

9. (h) Functional capacities.

   1. (1) Individuals who are eligible for the division’s services have a disability that limits their functional capacities in terms of an employment outcome.

   2. (2) The capacities that should be considered include the following:

      1. (A)

         1. (i) Mobility.
         2. (ii) Mobility refers to the ability to move from place to place inside and outside the home.
         3. (iii) A serious limitation in mobility exists if, due to the disability, the person:
10. (a) (a) Requires assistance from others to get around in the community;

11. (b) (b) Requires modifications, adaptive technology, or accommodations (not typically made for other workers) in order to move around the community; or

    1. (c) (c) Needs specialized training to learn to move around in the community.

       1. (iv) The following circumstances do not constitute serious, disability-related limitations in mobility, though they may be considered in rehabilitation planning as related factors:
12. (a) (a) Absence of or limitations in public transportation available in a geographic area;

13. (b) (b) Loss of driving privileges because of accumulation of points and/or charges such as DWI; or

    1. (c) (c) Lack of a personal vehicle;

       1. (B)

          1. (i) Communication.
          2. (ii) Communication is the ability to effectively exchange information through words or concepts (writing, speaking, listening, sign language, or other adaptive methods).
          3. (iii) A serious limitation in communication exists if the disability results in severely impaired expressive or receptive communication, either oral or written, and to be able to communicate effectively, the individual requires modifications, adaptive technology, or accommodations not typically made for other workers.
          4. (iv) Upon first contact, the individual may not be readily understood by others or may not understand others.
          5. (v) Communication problems stemming from a language or cultural difference that are not disability based would not constitute serious limitations in communication, though they would need to be considered in rehabilitation planning;

       2. (C)

          1. (i) Self-care.
          2. (ii) Self-care is the ability to manage oneself or one’s living environment (including, but not limited to, eating, toileting, grooming, dressing, money management, and medication compliance) as they affect the individual’s ability to participate in services or work-related activities.
          3. (iii) Limitations may occur because of physical, cognitive, or emotional impairments and could impact all tasks or only specific tasks.
          4. (iv) A serious limitation in self-care exists if the disability results in the individual being dependent upon other individuals, services, or devices to manage themselves or their living environment.
          5. (v)
14. (a) (a) Lack of or limited financial resources affecting self-care would not constitute serious limitations in self-care because it is not disability related.

15. (b) (b) However, such factors would need to be considered in rehabilitation planning;

    1. (D)

       1. (i) Self-direction.

          1. (ii) Self-direction refers to the ability to plan, initiate, problem solve, organize, and independently carry out goal-directed activities related to self-care, socialization, recreation, and work.
          2. (iii) A serious limitation in self-direction exists if due to the disability the individual is confused or disoriented, or requires assistance or intervention on an ongoing basis or during episodes in order to:
16. (a) (a) Perform tasks;

17. (b) (b) Monitor his or her own behavior; and

    1. (c) (c) Make decisions.

       1. (iv) General impulsivity and lack of focus, often characteristics of teenagers, would not in and of themselves constitute a serious limitation in self-direction for transitioning students, but would need to be considered in rehabilitation planning;

       2. (E)

          1. (i) Interpersonal skills.
          2. (ii) Interpersonal skills refers to the ability to establish and maintain personal, family, community, and work relationships.
          3. (iii) A serious limitation in interpersonal skills means that due to the disability the individual has no or limited ability to interact with others in a socially acceptable manner or is unable to relate to peers or coworkers without exhibiting inappropriate behaviors.
          4. (iv)
18. (a) (a) Immaturity, which is a common characteristic of teenagers and may be expressed as lack of developed communication skills, in and of itself does not constitute a serious limitation in interpersonal skills.

19. (b) (b) Such traits, however, should be considered in rehabilitation planning;

    1. (F)

       1. (i) Work tolerance.

          1. (ii) Work tolerance refers to the capacity to perform effectively and efficiently jobs that require various levels of physical and/or psychological demand, for at least a partial work day.
          2. (iii) A serious limitation in work tolerance exists when the individual will require modification, adaptive technology, or accommodations (not typically made for other workers) in terms of capacity or endurance.
          3. (iv) For example, the individual may not be able to:
20. (a) (a) Sustain an eight-hour work day;

21. (b) (b) Meet production standards; or

    1. (c) (c) Perform at a consistent pace without frequent rest breaks.

       1. (v) Individuals who could work full time but choose to work less than full time in order to retain benefits or for other reasons are not considered to have a serious limitation in work tolerance; and

       2. (G)

          1. (i) Work skills.
          2. (ii) Work skills refers to the:
22. (a) (a) Ability to perform specific tasks required to carry out job functions;

23. (b) (b) Capacity to benefit from training in the necessary skills; and

    1. (c) (c) Capacity to practice the work habits needed to stay employed.

       1. (iii) A serious limitation in work skills exists when the disability results in an inability to obtain or maintain employment normally available to persons of equivalent:
24. (a) (a) Age;

25. (b) (b) Education;

    1. (c) (c) Training; or

       1. (d) (d) Experience.

          1. (iv) In order to acquire work skills, the person requires:
26. (a) (a) Modifications;

27. (b) (b) Adaptive technology; or

    1. (c) (c) Accommodations not typically made for other workers.

       1. (v) Lack of work skills, for example, of transitioning youth because of age, does not in and of itself constitute a serious limitation in work skills, but may be considered as a related factor in rehabilitation planning.

          1. (vi) Anticipated difficulty in achieving work skills, and requirements for AT and other modifications, aside from absence of work experience, may be considered in determining limitations related to work skills.
          2. (vii)
28. (a) (a) In determining whether there are serious limitations in work skills, consider the impact of the disability on specific employment goals rather than on the universe of jobs.
29. (b) (b) For example, a math impairment may have a significant impact on an individual’s ability to be an engineer, but little impact on many other careers, including rehabilitation counselor or DDS examiner.

Codification Notes: “AT” means adaptive technology. "DDS" means Disability Determination Services. "DWI" means driving while intoxicated. "VR" means vocational rehabilitation.