29 USC 705 Definitions: Disability, Employment, Independent Living

29 U.S.C. § 705 is the definitions section of the Rehabilitation Act of 1973. It sets out the meaning of more than three dozen terms used throughout the statute, and those definitions decide two things that matter to almost anyone reading the Act: who qualifies for state vocational rehabilitation services, and who is protected from disability discrimination under Sections 501, 503, and 504. The section appears at the front of Chapter 16 of Title 29, and its terms control the vocational rehabilitation program (Subchapter I), research and training (Subchapter II), the rights and advocacy provisions in Subchapter V, and the independent living programs in Subchapter VII.¹ The implementing regulations that state agencies work from sit at 34 C.F.R. § 361.5.²

The Two Definitions of Disability

The single most important thing to understand about Section 705 is that it defines “disability” two different ways, and which one applies depends on which part of the Rehabilitation Act you are looking at.

Under paragraph 9(A), for purposes of the vocational rehabilitation program itself (Subchapter I), a disability is “a physical or mental impairment that constitutes or results in a substantial impediment to employment.”³ This is a work-focused test. The impairment has to be serious enough that it stands in the way of getting or keeping a job.

Under paragraph 9(B), for the nondiscrimination and civil rights provisions of the Act — Sections 501, 503, and 504, along with Subchapters II, IV, V, and VII — Section 705 adopts the broader ADA definition at 42 U.S.C. § 12102.⁴ That definition covers a physical or mental impairment that substantially limits one or more major life activities, a record of such an impairment, or being regarded as having one.⁵

The practical effect: the nondiscrimination protections reach a much wider population than the vocational rehabilitation services. Someone protected against disability discrimination under Section 504 does not need to show any work-related limitation at all.

What the ADA Definition Covers

The ADA definition, as amended in 2008, is meant to be read broadly. Major life activities include walking, seeing, hearing, breathing, learning, concentrating, communicating, and working, as well as major bodily functions such as immune system operation, digestion, and neurological function.⁶ Congress directed that the definition “be construed in favor of broad coverage,” and it told courts to evaluate impairments without regard to the benefit of medication, prosthetics, hearing aids, or other mitigating measures, with a narrow exception for ordinary eyeglasses and contact lenses. Episodic conditions and conditions in remission count if they would substantially limit a major life activity when active.⁵

Who Is an “Individual With a Disability”

For the vocational rehabilitation program, an “individual with a disability” is someone who has a physical or mental impairment that creates a substantial impediment to employment and who can benefit from vocational rehabilitation services in terms of an employment outcome.⁷ Both parts have to be true. The impairment must be a real obstacle to work, and the person must be expected to benefit from services. This is the eligibility gate for state VR programs.

For Sections 501, 503, and 504, the definition cross-references the broader ADA standard, which does not require any employment-related limitation.³

Exclusions From the Definition

Section 705 also carves people out. For the nondiscrimination provisions of Subchapter V, the term does not include someone currently engaged in illegal drug use. People who have completed or are participating in a supervised rehabilitation program and are no longer using are not excluded.⁸

For the employment-related sections (29 U.S.C. §§ 793 and 794), the definition also excludes alcoholics whose current alcohol use prevents them from doing the job or poses a direct safety threat, and individuals with a currently contagious disease or infection who pose a direct threat to health or safety or cannot perform job duties.⁷

The statute further provides that the term does not cover individuals solely on the basis of homosexuality or bisexuality, and it excludes coverage based on transvestism, transsexualism, pedophilia, exhibitionism, voyeurism, gender identity disorders not resulting from physical impairments, compulsive gambling, kleptomania, pyromania, or psychoactive substance use disorders resulting from current illegal drug use.³

“Individual With a Significant Disability”

A step above the general definition, an “individual with a significant disability” is someone whose impairment seriously limits one or more functional capacities — mobility, communication, self-care, self-direction, interpersonal skills, work tolerance, or work skills — and whose rehabilitation is expected to require multiple vocational rehabilitation services delivered over an extended period.⁷ The statute lists qualifying conditions including amputation, autism, cancer, deafness, and intellectual disability, along with other conditions causing comparable functional limitations.

This tier matters because when a state cannot serve everyone who is eligible, individuals with the most significant disabilities receive priority under what the program calls an order of selection.

What Counts as an Employment Outcome

Section 705 also defines what the vocational rehabilitation system is actually trying to help people achieve.

An “employment outcome” means entering or retaining full-time or part-time competitive employment in the integrated labor market, achieving the vocational outcome of supported employment, or achieving another outcome the Secretary of Education considers appropriate, including customized employment, self-employment, telecommuting, or business ownership.³

Competitive Integrated Employment

Added in 2014 by the Workforce Innovation and Opportunity Act (WIOA), “competitive integrated employment” is now the central benchmark in disability employment policy. It means work performed on a full-time or part-time basis (including self-employment) where the individual is paid at least the higher of the federal minimum wage or the applicable state or local minimum wage, and no less than what the employer pays non-disabled employees doing similar work with similar qualifications. The employee must be eligible for the same benefits as other employees, work in a setting where they interact with non-disabled people to the same extent as comparable co-workers, and have similar opportunities for advancement.⁹¹⁰

Customized Employment

“Customized employment,” also added by WIOA, is a form of competitive integrated employment designed for people with significant disabilities. It rests on an individualized assessment of the person’s strengths, needs, and interests, matched to the employer’s business needs, and it may involve customizing a job description, duties, work schedule, or supervision arrangements.¹¹

Supported Employment

“Supported employment” is competitive integrated employment for individuals with the most significant disabilities — people for whom such employment has not historically occurred or has been interrupted because of a significant disability, and who require intensive services and extended support to perform the work. “Supported employment services” refers to the ongoing support, including customized employment strategies, needed to help these individuals maintain their jobs.³

Definitions for Youth and Students

WIOA added several definitions aimed at reaching young people with disabilities before they leave school.

A “student with a disability” is someone with a disability who is within the age range for transition services under the Individuals with Disabilities Education Act (IDEA) — generally no younger than 16 (or younger if a state elects) and no older than 21 (or older if state law allows) — and who is either receiving special education services under IDEA or is covered as an individual with a disability under Section 504.¹²

A “youth with a disability” is defined more broadly as a person with a disability between the ages of 14 and 24.¹²

“Pre-employment transition services” are defined by reference to Section 113 of the Act and include job exploration counseling, work-based learning experiences, counseling on postsecondary education, workplace readiness training, and self-advocacy instruction. States are required to reserve at least 15 percent of their federal vocational rehabilitation funding for these services.¹²

Independent Living Definitions

Section 705 also defines the terms that govern the independent living programs authorized under the Rehabilitation Act.

“Independent living core services” include information and referral, independent living skills training, peer counseling (including cross-disability peer counseling), individual and systems advocacy, and services that help people transition out of nursing homes and other institutions into community-based living, assist people at risk of institutionalization in remaining in the community, and help youth with significant disabilities transition from secondary school to postsecondary life.¹³

“Independent living services” is broader. It covers those core services plus counseling, housing assistance, rehabilitation technology, mobility training, personal assistance services, transportation, physical rehabilitation, therapeutic treatment, prosthetics, social and recreational services, and other supports aimed at helping individuals with disabilities live independently in their communities.³

Other Operational Terms

Section 705 also fixes the meaning of a range of program terms that state VR agencies rely on day to day, including:

Administrative costs — expenditures for planning, development, quality assurance, budgeting, technical assistance, legal expenses, and similar functions.
Assessment for determining eligibility and vocational rehabilitation needs — the process of reviewing existing data and, when necessary, performing comprehensive assessments to determine eligibility and service needs.
Community rehabilitation program — a program that provides or facilitates vocational rehabilitation services such as job placement, therapy, and extended employment.
Designated state agency — the state agency responsible for administering the vocational rehabilitation program under the state plan required by Section 721.
Extended services — ongoing support services for individuals with the most significant disabilities after they have transitioned into supported employment.
Personal assistance services — services provided by one or more people to help an individual with a disability perform daily living activities.
Rehabilitation technology — the systematic application of technologies and engineering to address barriers to education, employment, and independent living.

How the Terminology Got Here

The definitions in Section 705 have shifted several times since the Rehabilitation Act was signed by President Nixon on September 26, 1973.¹⁴ The 1973 statute originally used the term “handicapped individual.” In 1992 Congress amended the Act to replace “handicap” with “disability” throughout, and added a presumption that individuals with disabilities can benefit from vocational rehabilitation.¹⁵ The 1998 reauthorization under the Workforce Investment Act replaced “severe” disability with “significant” disability and established the Individualized Plan for Employment.¹⁶

The ADA Amendments Act of 2008 then broadened how “disability” is interpreted for the nondiscrimination provisions of the Rehabilitation Act, and WIOA in 2014 added the current definitions of competitive integrated employment, customized employment, student with a disability, and pre-employment transition services.¹¹

Where to Find the Operational Detail

The statutory definitions in Section 705 are elaborated in the implementing federal regulations at 34 C.F.R. § 361.5, which state vocational rehabilitation agencies use as operational guidance in running their programs.¹⁷ If you are trying to answer a specific eligibility or coverage question, start with the paragraph of Section 705 that defines the term, note whether the term is used in Subchapter I (services) or Subchapter V (rights), and then check the corresponding regulation for how the state agency applies it in practice.

1
GovInfo. 29 USC 705 — Definitions
2
Legal Information Institute. 34 CFR 361.5 — Applicable Definitions
3
Office of the Law Revision Counsel. 29 USC 705 — Definitions
4
Legal Information Institute. 29 USC 705 — Definitions
5
Office of the Law Revision Counsel. 42 USC 12102 — Definition of Disability
6
EEOC. ADA Amendments Act of 2008
7
GovInfo. 29 USC 705 — Definitions
8
Legal Information Institute. 29 USC 705(20)(C) — Individual With a Disability
9
Legal Information Institute. 29 USC 705(5) — Competitive Integrated Employment
10
Rehabilitation Services Administration. RSA FAQ 22-02
11
Workforce Kansas. WIOA Title IV Amendments to the Rehabilitation Act of 1973
12
Transition TA. Pre-ETS Laws, Regulations, and Policies
13
Legal Information Institute. 29 USC 705(18) — Independent Living Services
14
National Council on Disability. NCD Celebrates 50 Year Anniversary of Rehabilitation Act of 1973
15
Law Library of Congress. Section 504 of the Rehabilitation Act — CRS Report
16
EveryCRS Report. Rehabilitation Act — Reauthorization
17
eCFR. 34 CFR 361.5 — Applicable Definitions