State vocational rehabilitation agencies remain the single biggest funding
opportunity for blind persons to obtain adaptive technology devices,
services, and training. Below is a booklet that describes the access
technology funding opportunities through rehabilitation services. If you
want the full text of the law and its regulations go to the Empowerment
Zone web site at http://www.empowermentzone.com and search for the phrase
rehab.
I know the booklet is a long read, but you will discover rights that you
never knew existed before.
kelly
FUNDING OF
ASSISTIVE TECHNOLOGY
State Vocational Rehabilitation Agencies and Their
Obligation to Maximize Employment
July 1999
Assistive Technology Funding & Systems Change Project
United Cerebral Palsy Associations
Suite 700, 1660 L Street, N.W.
Washington, D.C. 20036
(V) 1-800-872-5827; (fax) 202-776-0414
(email) [log in to unmask]
National Assistive Technology Advocacy Project
A Project of Neighborhood Legal Services, Inc.
Buffalo, New York
Individual Author:
Ronald M. Hager, Esq.
National Assistive Technology Advocacy Project
Neighborhood Legal Services, Inc.
295 Main Street, Room 495
Buffalo, New York 14203
(v) 716-847-0650; (fax) 716-847-0227
(tdd) 716-847-1322
(email) [log in to unmask]
(web page) www.nls.org
This Publication is Funded Through a Contract Received From the
National Institute on Disability and Rehabilitation Research, U.S.
Department of Education.
The Assistive Technology Funding & Change Project is fully funded
under Contract # HN9404001 from the National Institute on Disability
and Rehabilitation Research, U.S. Department of Education, to United
Cerebral Palsy Associations, Inc. and its subcontractors.
The opinions expressed herein do not necessarily reflect the position
of the U.S. Department of Education, and no official endorsement by
the U.S. Department of Education of the opinions expressed herein
should be inferred.
TABLE OF CONTENTS
LIST OF ACRONYMSi
I. Introduction
II. Eligibility for Vocational Rehabilitation Services
A. Basic Eligibility Criteria
B. Evaluation of Eligibility
III. The Individualized Plan for Employment
A. Informed Choice
B. Developing the Individualized Plan for Employment
IV. Available Services
A. Required Services
B. Assistive Technology
C. Post-Employment Services
D. Out-of-State Services
V. Financial Need Criteria
VI. Maximization of Employment
A. Pre-1986 Standard
B. The Post-1986 Maximization Requirements
C. Rehabilitation Services Administration Policy Directive
D. Court Decisions
VII. Comparable Services Requirement
A. Basic Requirements
B. Defaulted Student Loans
1. Effect of Defaulted Student Loans on VR Funding for College
2. Forgiveness of Student Loans
3. Repayment of Defaulted Student Loans
VIII. Purchase of AT for Special Education Students in Transition: Who
Pays?
A. Transition Services under the Individuals with Disabilities
Education Act
B. Transition Obligations Under the Rehabilitation Act
C. Reading the Special Education and VR Laws Together
IX. AT for the College Student: Who Pays?
A. Obligations of Colleges and Universities
B. Obligations of the Vocational Rehabilitation System
C. Reading the Two Sets of Requirements Together
X. Hearing and Appeal Rights
XI. Conclusion
LIST OF ACRONYMS
AT:
Assistive technology
ADA:
The Americans with Disabilities Act
IDEA:
Individuals with Disabilities Education Act
IEP:
Individualized education program
IPE:
Individualized plan for employment, formerly referred to as the IWRP
IWRP:
Individualized written rehabilitation plan
Rehab '98:
1998 amendments to the Rehabilitation Act
RSA:
Rehabilitation Services Administration
Section 504:
Section 504 of the Rehabilitation Act of 1973
SSDI:
Social Security Disability Insurance
SSI:
Supplemental Security Income
VR:
Vocational rehabilitation
WIA:
Workforce Investment Act, 1998 federal law that included amendments to
the VR laws
I. Introduction
The services available through each state's vocational
rehabilitation (VR) system can play a critical role in assisting
people with disabilities to enter the work force. As with any other
area of life, assistive technology (AT) can greatly enhance the
employment options for many people with disabilities. How does one
enter the VR system? What are the obligations of the VR system to
provide AT for individuals with disabilities? This booklet reviews VR
eligibility criteria, specific goods and services that can be
provided, issues to keep in mind when using this system to obtain AT,
appeal procedures and the advocacy services available through Client
Assistance Programs.
The Rehabilitation Act was first passed in 1973. Congress,
pursuant to Title I of the Rehabilitation Act, gives money to states
to provide VR services to persons with disabilities. 29 U.S.C. §§ 701
et seq.; 34 C.F.R. Part 361. To receive funding, a state must submit a
plan consistent with the law. 29 U.S.C. § 721. It must designate a
single state agency to administer the plan, unless it designates a
second agency to provide services to individuals who are blind. Id. §
721(a)(2).
VR agencies can fund a wide range of goods and services, including
"rehabilitation technology" (i.e., AT), that are connected to a
person's vocational goal. Congress has stated that VR services are to
empower individuals to maximize employability, economic
self-sufficiency, independence and integration into the work place and
the community through "comprehensive and coordinated state-of-the-art
programs." Id. § 701(b)(1)(emphasis added).
On August 7, 1998, President Clinton signed into law the Workforce
Investment Act of 1998 (WIA). P.L. 105-220, 112 Stat. 936. Included
within the Workforce Investment Act were the Rehabilitation Act
Amendments of 1998 (Rehab '98), reauthorizing the Rehabilitation Act
through 2003. The WIA is a major federal effort to incorporate a
myriad of federal job training programs into a coordinated,
comprehensive system. States are required to develop statewide and
local plans and to include the VR system in that planning process.
Although Congress had contemplated merging the VR system into the WIA,
VR is maintained as a separate program to meet the vocational training
needs of people with disabilities. But, the vocational training
opportunities of the state workforce investment system are clearly
intended to be available to individuals with disabilities. See 29
U.S.C. § 701(b)(1)(A).
II. Eligibility for Vocational Rehabilitation Services
A. Basic Eligibility Criteria
To receive services, an individual must be disabled and require VR
services "to prepare for, secure, retain or regain employment." Id. §
722(a)(1). Therefore, any service an individual is to receive from the
VR system must be connected to an ultimate employment goal. Potential
employment outcomes were expanded by Rehab '98. Employability had been
defined as full or part-time competitive employment to the greatest
extent practicable, supported employment or other employment
consistent with the individual's strengths, abilities, interests and
informed choice. 34 C.F.R. § 361.5(b)(15). Rehab '98 adds
self-employment, telecommuting and business ownership as successful
employment outcomes. 29 U.S.C § 705(11)(C).
Persons must show a mental, physical or learning disability that
interferes with the ability to work. The disability need not be so
severe as to qualify the person for Social Security Disability
Insurance (SSDI) or Supplemental Security Income (SSI) benefits. The
disability must only be a substantial impediment to employment. Id. §
705(20)(A).
Rehab '98 changed the designation of individual with a "severe" or
"most severe" disability to individual with a "significant" or "most
significant" disability. Id. § 705(21). Recipients of SSDI or SSI are
presumed to be eligible for VR services, as individuals with a
significant disability, provided they intend to achieve an employment
outcome. Id. § 722(a)(3).
Although VR services may be denied if a person cannot benefit from
them, a person is presumed capable of employment, despite the severity
of a disability, unless the VR agency shows by clear and convincing
evidence that he or she cannot benefit from services. Id. § 722(a)(2);
34 C.F.R. § 361.42(a)(2). Prior to determining that a person with a
disability is incapable of benefitting from VR services because of the
severity of the person's disability, the state VR agency must explore
the individual's work potential through a variety of trial work
experiences, with appropriate supports. These trial work experiences
must "be of sufficient variety and over a sufficient length of time to
determine" whether the individual is eligible. 29 U.S.C. §
722(a)(2)(B). The only exception is for the "limited circumstances" in
which the individual cannot take advantage of such experiences, even
with support. Id. For individuals denied services because they are
determined to be incapable of benefitting, the decision must be
reviewed within 12 months by the VR agency and thereafter, if
requested. Id. § 722(a)(5)(D).
If a state does not have the resources to provide VR services to
all eligible individuals who apply, it must specify in its State VR
Plan the order to be followed in selecting those individuals who will
receive services. This is called the "Order of Selection." It must
also provide justification for the Order of Selection it establishes.
However, the state must ensure that individuals with the most
significant disabilities are selected first to receive VR services.
Id. § 721(a)(5). Rehab '98 makes some provision for those who are not
served. They are entitled to an appropriate referral to other state
and federal programs, including other providers within the state
workforce investment system. Id. §§ 721(a)(5)(D) and 721(a)(20).
The state VR agency must enter into an agreement with other
providers within the statewide workforce investment system, which may
include intercomponent staff training and technical assistance
regarding:
[T]he promotion of equal, effective, and meaningful participation
by individuals with disabilities in workforce investment activities
in the State through the promotion of program accessibility, the
use of nondiscriminatory policies and procedures, and the provision
of reasonable accommodations, auxiliary aids and services, and
rehabilitation technology, for individuals with disabilities.
Id.
§ 721(a)(11)(A)(i)(II). Most of these requirements are already
mandatory for recipients of federal funds pursuant to Section 504 of
the Rehabilitation Act of 1973 (id. § 794) and for providers that are
covered by the Americans with Disabilities Act. 42 U.S.C. §§ 12101 et
seq.
B. Evaluation of Eligibility
The state VR agency must determine eligibility within a reasonable
period of time, not to exceed 60 days, after the individual submits an
application for services. 29 U.S.C. § 722(a)(6). The VR agency can
exceed 60 days for its determination under two circumstances: (1) if
the individual requires an extended evaluation to determine
eligibility; or (2) if the individual is notified that exceptional and
unforeseen circumstances beyond the control of the agency preclude it
from completing the determination within 60 days and the individual
agrees that an extension of the time is warranted. Id.
Information used to determine eligibility includes: (1) existing
data, such as medical reports, Social Security Administration records
and education records; and (2) to the extent existing data is
insufficient to determine eligibility, an assessment done by or
obtained by the VR agency. Id. § 722(a)(4)(C).
III. The Individualized Plan for Employment
After eligibility is established, the next step is to develop a
written plan setting forth the individual's employment goal and the
specific services to be provided to assist the individual to reach
that goal. This plan had been called the individualized written
rehabilitation plan (IWRP). The name has been changed by Rehab '98 to
the individualized plan for employment (IPE). Id. § 722(b). This plan,
which is to be developed by the consumer, with assistance from the VR
counselor, is to be set forth on a form provided by the state VR
agency. Id. § 722(b)(2)(A).
Prior to developing the IPE, there must be a comprehensive
assessment, to the extent necessary to determine the employment
outcome, objectives and nature and scope of VR services. The
assessment is to evaluate the unique strengths, resources, priorities,
abilities and interests of the individual. The assessment can cover
educational, psychological, psychiatric, vocational, personal, social
and medical factors that affect the employment and rehabilitation
needs of the individual. Id. § 705(2)(B). It may also include a
referral for the provision of rehabilitation technology services, "to
assess and develop the capacities of the individual to perform in a
work environment." Id. § 705(2)(C).
A. Informed Choice
It has been the policy of the VR system that all activities are to
be implemented consistent with the principles of "respect for
individual dignity, personal responsibility, self-determination, and
pursuit of meaningful careers, based on informed choice, of
individuals with disabilities." Id. § 701(c)(1)(emphasis added).
Rehab'98 revolutionizes informed choice. VR agencies must assist
individuals in their exercise of informed choice throughout the VR
process, including the assessment, selection of an employment outcome,
the specific VR services to be provided, the entity which will provide
the services, the method for procuring services and the setting in
which the services will be provided. Id. §§ 720(a)(3)(C) and
722(d)(1)-(5). The VR agency must still approve the IPE, but the
individual decides the level of involvement, if any, of the VR
counselor in developing the IPE. Id. §§ 722(b)(1)(A) and 722(b)(2)(C).
The stated reason for such an expanded role for the consumer was
Congress' belief "that a consumer-driven program is most effective in
getting people jobs." Congressional Record-House, H6693, July 29,
1998. To foster effective informed choice, the state must "develop and
implement flexible procurement policies and methods that facilitate
the provision of services, and that afford eligible individuals
meaningful choices among the methods used to procure services." 29
U.S.C. § 722(d)(3)(emphasis added).
The legislative history underscores the impact of these provisions:
The Conferees expect that these changes will fundamentally change
the role of the client-counselor relationship, and that in many
cases counselors will serve more as facilitators of plan
development.
Congressional Record-House, H6693, July 29, 1998.
While Rehab '98 re-writes the rules on informed choice, this does
not mean that individual is free to select whatever employment goal he
or she wants. The goal must still be consistent with the individual's
abilities. Further, because the ultimate objective of the VR system is
employment, there must be some likelihood that the goal will lead to a
viable employment outcome.
In Matter of Wenger, 504 N.W.2d 794 (Minn. Ct. of App. 1993), the
court affirmed the VR agency's rejection of the petitioner's desired
VR objective. The court found that there was substantial evidence in
the record that the petitioner's desired VR goal "was not likely to
lead to gainful employment." Id. at 799. Because the case was decided
prior to the changes in informed choice made by Rehab '98, the
references in the case to the IWRP (now IPE) being "jointly developed"
are no longer applicable. Nevertheless, the court's decision, that the
VR objective was not likely to lead to employment and, therefore, the
VR agency was justified in rejecting it, is still viable.
B. Developing the Individualized Plan for Employment
Any service to be provided to meet the employment goal must be
specified on the IPE. The IPE should enable the individual to achieve
the agreed upon employment objectives and must include the following:
1. The specific employment outcome, chosen by the individual,
consistent with the unique strengths, concerns, abilities and
interests of the individual;
2. The specific VR services to be provided, in the most integrated
setting appropriate to achieve the employment outcome, including
appropriate AT and personal assistance services;
3. The timeline for initiating services and for achieving the
employment outcome;
4. The specific entity, chosen by the individual, to provide the VR
services and the method chosen to procure those services;
5. The criteria for evaluating progress toward achieving the
employment outcome;
6. The responsibilities of the VR agency, the individual (to obtain
comparable benefits) and any other agencies (to provide comparable
benefits);
7. In states which have a financial needs test (see below), any
costs for which the individual will be responsible;
8. For individuals with the most significant disabilities that are
expected to need supported employment, the extended services to be
provided; and
9. The projected need for post employment services, if necessary.
29 U.S.C. § 722(b)(3).
The IPE must be reviewed at least annually and, if necessary,
amended if there are substantive changes in the employment outcome,
the VR services to be provided or the service providers. Any changes
will not take effect until agreed to by the individual and the VR
counselor. Id. § 722(b)(2)(E).
IV. Available Services
A. Required Services
VR services are defined as any services, described in an IPE,
which are necessary to assist an individual with a disability in
"preparing for, securing, retaining, or regaining an employment
outcome that is consistent with the strengths, resources, priorities,
concerns, abilities, capabilities, interests, and informed choice of
the individual." Id. § 723(a). The VR agency is to ensure that all
necessary services to equip the individual for employment are
provided. As noted above, if there are insufficient resources to fully
meet the needs of all individuals with disabilities in the state, the
state must go to an Order of Selection. It cannot choose to provide
only some services to eligible individuals to save costs. As more
fully discussed in the comparable benefits section below, however, the
State VR agency can look to other providers to fund the needed
services.
The services which are available from the VR system are incredibly
broad and varied. Essentially, whatever an individual with a
disability needs to overcome a barrier to employment can be covered.
For example, in Turbedsky v. PA Dept. of Labor and Industry, 65
Pa.Cmwlth. 363, 442 A.2d 849 (Pa. Cmwlth. Ct. 1982), the court ordered
the VR agency to provide a full-time attendant for the petitioner. He
was respirator dependent and a quadriplegic, living in an institution.
He needed a full-time attendant to monitor his ventilation system and
attend to his needs so he could live in the community. The VR agency
was funding his attendance at college. The petitioner argued that his
likelihood for success in college and, ultimately, employment would be
enhanced by living in the community. The court agreed. It found that
the full-time attendant care was a covered service and necessary for
the individual to receive the "full benefit" of college. The court
rejected the VR agency's argument that it had discretion to determine
the services to be provided to eligible individuals. According to the
court, the VR agency is not free to limit VR services to one
individual in order to provide other services to other people. In such
cases, the VR agency must resort to the Order of Selection.
Services must include, but are not limited to, the following:
1. The assessment to determine eligibility and needs, including, if
appropriate, by someone skilled in rehabilitation technology (i.e.,
AT).
2. Counseling, guidance and job placement services and, if
appropriate, referrals to the services provided by WIA providers.
3. Vocational and other training, including higher education and
the purchase of tools, materials and books.
4. Diagnosis and treatment of physical or mental impairments to
reduce or eliminate impediments to employment, to the extent
financial support is not available from other sources, including
health insurance or other comparable benefits. This may include:
a. corrective surgery;
b. therapeutic treatment;
c. necessary hospitalization;
d. prosthetic and orthotic devices;
e. eyeglasses and visual services;
f. services for individuals with end-stage renal disease, including
dialysis, transplants and artificial kidneys; and
g. diagnosis and treatment for mental or emotional disorders.
5. Maintenance for additional costs incurred during rehabilitation.
In Scott v. Parham, 422 F.Supp. 111 (N.D. Ga. 1976), the Court
struck down a limitation on maintenance to only those receiving VR
services outside of the home or home community because it failed to
account for the individualization requirements of Title I of the
Rehabilitation Act.
6. "Transportation, including adequate training in the use of
public transportation vehicles and systems, that is provided in
connection with the provision of any other service described in
this section and needed by the individual to achieve an employment
outcome (emphasis added)." Transportation may include vehicle
purchase. Under the regulations, transportation is defined as
"travel and related expenses that are necessary to enable an
applicant or eligible individual to participate in a [VR] service."
34 C.F.R. § 361.5(b)(49). A note, following the regulation,
specifically states that "[t]he purchase and repair of vehicles,
including vans" is an example of an expense that would meet the
definition of transportation. Id., Note.
7. Personal assistance services while receiving VR services.
8. Interpreter services for individuals who are deaf, and readers,
rehabilitation teaching and orientation and mobility services for
individuals who are blind.
9. Occupational licenses, tools, equipment, initial stocks and
supplies.
10. Technical assistance for those who are pursuing telecommuting,
self-employment or small business operation.
11. Rehabilitation technology (i.e., AT), including vehicular
modification, telecommunications, sensory, and other technological
aids and devices.
12. Transition services for students with disabilities to
facilitate the achievement of the employment outcome identified in
the IPE.
13. Supported employment.
14. Services to the family to assist an individual with a
disability to achieve an employment outcome.
15. Post-employment services necessary to assist an individual to
retain, regain or advance in employment.
29 U.S.C. § 723(a); 34 C.F.R. § 361.48(a).
B. Assistive Technology
The Rehabilitation Act uses the definitions of AT devices and
services contained in the Technology-Related Assistance for
Individuals with Disabilities Act of 1988 (Tech Act)(P.L. 100-407, 102
Stat. 1044, 29 U.S.C. §§ 2201 et seq.). Id. § 705(3) and (4).
The term "assistive technology device" 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 functional capabilities of individuals with
disabilities.
Id.
§ 2202(2).
The term "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. Such term
includes-
(A) the evaluation of the needs of an individual with a disability,
including a functional evaluation of the individual in the
individual's customary environment;
(B) purchasing, leasing, or otherwise providing for the acquisition
of assistive technology devices by individuals with disabilities;
(C) selecting, designing, fitting, customizing, adapting, applying,
maintaining, repairing, or replacing of assistive technology
devices;
(D) coordinating and using other therapies, interventions, or
services with assistive technology devices, such as those
associated with existing education and rehabilitation plans and
programs;
(E) training or technical assistance for an individual with
disabilities, or, where appropriate, the family members, guardians,
advocates, or authorized representatives of such an individual; and
(F) training or technical assistance for professionals (including
individuals providing education and rehabilitation services),
employers, or other individuals who provide services to, employ, or
are otherwise substantially involved in the major life functions of
individuals with disabilities.
Id.
§ 2202(3).
The legislative history to the Tech Act indicates the broad range
of AT devices that were contemplated:
The Committee includes this broad definition to provide maximum
flexibility to enable States to address the varying needs of
individuals of all ages with all categories of disabilities and to
make it clear that simple adaptations to equipment are included
under the definition as are low and high technology items and
software.
Senate Report No. 100-438, 1988 U.S. Code Cong. & Admin. News, p.
1405.
The availability of AT devices and services are expressly included
in the definition of "rehabilitation technology" in Title I of the
Rehabilitation Act. Rehabilitation technology is defined as:
[T]he 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 which include education, rehabilitation, employment,
transportation, independent living, and recreation. The term
includes rehabilitation engineering, assistive technology devices,
and assistive technology services.
29 U.S.C. § 705(30).
The rehabilitation technology services envisioned by Title I of
the Rehabilitation Act can take many forms and are in no way limited
by the Act. The State VR Plan must describe the "manner in which the
broad range of rehabilitation technology services will be provided,"
including training and the provision of AT. 34 C.F.R. §
361.48(b)(emphasis added).
The use of AT to assist in preparing individuals with disabilities
for employment permeates the VR process. As noted above, the
assessments to determine eligibility and rehabilitation needs may
include an assessment by someone skilled in rehabilitation technology.
29 U.S.C. §§ 705(2)(C) and 723(a)(1). Available VR services which may
meet the definition of AT include:
1. Prosthetic and orthotic devices;
2. Eyeglasses;
3. Orientation and mobility services, which can include AT;
4. Rehabilitation technology services, which can include vehicular
modifications [34 C.F.R. § 361.5(b)(49), Note];
5. Telecommunications;
6. Sensory devices; and
7. Other technological aids and devices.
29 U.S.C. § 723(a). Any such service must be listed on the IPE. Id.
Several examples of AT can be gleaned from the court decisions.
For example, in Chirico v. Office of Voc. and Educ. Services, 211
A.D.2d 258, 627 N.Y.S.2d 815 (N.Y. App. Div. 3rd Dept. 1995), the
court approved funding for a voice-activated computer for job-related
paperwork at home to enable the individual to advance in his
employment. In Brooks v. Office of Vocational Rehabilitation, 682 A.2d
850 (Pa. Cmwlth. Ct. 1996), the VR agency agreed to provide an
individual with Multiple Chemical Sensitivities funding for: "1) full
dental filling replacements; 2) a sauna for her home to allow her to
'detoxify'; 3) a computer, modem, and software packages; and 4) typing
services." Id. at 851. The court denied her request for chiropractic
services, however, finding that the individual did not demonstrate
that it would benefit her.
As with any other VR service, the standard for obtaining AT is
whether it is "necessary to assist an individual with a disability in
preparing, securing, retaining, or regaining an employment outcome."
29 U.S.C. § 723(a). For example, in Zingher v. Dept. of Aging and
Disabilities, 163 Vt. 566, 664 A.2d 256 (Vt. S.Ct. 1995), the court
agreed with the VR agency that it was appropriate to wait until
petitioner had a job before purchasing compensatory computer hardware
and software. The petitioner had a degree in accounting and had
learning, emotional and physical disabilities. A computer expert,
hired by the VR agency, recommended that compensatory computer
hardware and software should not be purchased until the petitioner had
a job so that the compensatory equipment could be tailored to the job
site and the actual equipment being used by the employer. The court
agreed. Moreover, the court noted that the comprehensive accounting
system sought by the petitioner would be consistent with a goal of
self-employment. However, the petitioner's goal had never been
self-employment. The court also noted that once petitioner obtained a
job, any equipment necessary for him to do the job must be provided
promptly by the VR agency, because "any delay in obtaining equipment
necessary for petitioner to do the job will jeopardize a position he
succeeds in securing." Id., 664 A.2d at 260.
C. Post-Employment Services
Post-employment services are defined as services provided after
the person has achieved an employment outcome, which are necessary for
the individual "to maintain, regain or advance in employment." 34
C.F.R. § 361.5(b)(37)(emphasis added). A note to the regulation
indicates some possible circumstances in which post-employment
services may be appropriate:
Post-employment services are available to assist an individual to
maintain employment, e.g., the individual's employment is jeopardized
because of conflicts with supervisors or co-workers and the individual
needs mental health services and counseling to maintain the
employment; to regain employment, e.g., the individual's job is
eliminated through reorganization and new placement services are
needed; and to advance in employment, e.g., the employment is no
longer consistent with the individual's strengths, resources,
priorities, concerns, abilities, capabilities, and interests.
Id.
, Note.
Each IPE must indicate the expected need for post-employment
services. Prior to a decision that an individual has achieved an
employment outcome, there must be a reassessment of the need for
post-employment services. Id. § 361.46(c). If there will be a need for
post-employment services, they are to be provided under an amended
IPE. Therefore, there is no need for a re-determination of
eligibility. Id § 361.5(b)(37). A note indicates that post-employment
services are not intended to be complex or comprehensive and should be
limited in scope and duration. If more comprehensive services are
required, a new rehabilitation effort should be considered. Id., Note.
In Chirico v. Office of Voc. and Educ. Services, 211 A.D.2d 258,
627 N.Y.S.2d 815 (N.Y. App. Div. 3rd Dept. 1995), the individual
sought funding for a voice-activated computer for job-related paper
work at home to enable him to advance in his employment. The court
rejected the VR agency's "implicit view that they can best determine
the bounds of petitioner's potential and judgement that petitioner's
present position (attained before he was 40) is all he should ever
expect to achieve." Id., 211 A.D. 2d at 261.
D. Out-of-State Services
What if a VR consumer needs to attend a program out-of-state
because there is no program within the state to prepare the individual
for the agreed upon employment goal? What if there is a program within
the state, but, for personal reasons, the individual prefers to attend
the out-of-state program? May the VR agency refuse to fund the
program? The regulations provide some guidance.
A state cannot establish policies that "effectively prohibit the
provision of out-of-state services." Id. § 361.50(a)(2). However, a
state "may establish a preference for in-state services," as long as
there are exceptions to ensure that an individual is not denied a
necessary service. Id. § 361.50(a)(1). Therefore, if there is no
program within the state that will enable the individual to meet the
employment goal, the state must have a process to fully fund the
out-of-state program (subject to any financial need criteria the state
may have established).
On the other hand, if the out-of-state program costs more than an
in-state service, and either service would meet the individual's
rehabilitation needs, the VR system is not responsible for costs in
excess of the cost of the in-state service. The individual must still
be able to choose an out-of-state service, and the VR system would be
responsible for the costs of the out-of-state program, up to the cost
of the in-state program. Id.
V. Financial Need Criteria
There is no requirement that a state consider financial need when
providing VR services. Id. § 361.54(a). However, if a state VR agency
chooses to establish a financial needs test, it must establish written
policies which govern the determination of financial need and which
identify the specific VR services that will be subject to the
financial needs test. Id. § 361.54(b)(2).
Any financial needs test must take into account the individual's
disability-related expenses. Id. § 361.54(b)(2)(v)(B). The level of
the individual's participation must not be so high as to "effectively
deny the individual a necessary service." Id. § 362.54(b)(2)(v)(C).
The following services must be provided without regard to financial
need: (1) diagnostic services; (2) counseling, guidance and referral
services; and (3) job placement. Id. § 361.54(b)(3).
VI. Maximization of Employment
A. Pre-1986 Standard
When the Rehabilitation Act was first passed in 1973, the preamble
to the entire Act, not just Title I (which addresses VR services),
included the following as the stated purpose:
[T]o develop and implement comprehensive and continuing state plans
for meeting the current and future needs for providing [VR]
services to handicapped individuals ... so that they may prepare
for and engage in gainful employment.
Former 29 U.S.C. § 701(1).
There was a separate section stating that the purpose of Title I
of the Act was to:
[A]ssist States to meet the current and future needs of handicapped
individuals, so that such individuals may prepare for and engage in
gainful employment to the extent of their capabilities.
Former 29 U.S.C. § 720(a)(emphasis added).
In Cook v. PA Bureau of Vocational Rehabilitation, 45 Pa.Cmwlth.
415, 405 A.2d 1000 (Pa. Cmwlth. Ct. 1979), the court noted that the
above-quoted statutory language did not equate to being employed at
"any job." The employment goal had to be consistent with the
individual's abilities. The petitioner had a bachelor's degree and
conceded that he could "get a job," but sought VR funding for law
school. The court did not make a final decision, however, and remanded
the case for further proceedings because the record was incomplete.
B. The Post-1986 Maximization Requirements
The requirement that VR services are to be designed to maximize
the employment of VR consumers was first added by 1986 amendments. As
first stated in 1986, the standard was "to develop and implement ...
comprehensive and coordinated programs of VR ... to maximize ...
employability, independence, and integration into the workplace and
the community." Pub. L. 99-506, § 101, 100 Stat. 1808(emphasis added).
This language was added to the preamble covering the entire Act, not
just Title I.
The legislative history emphasized Congressional intent:
[T]he overall purpose of the Act is to develop and implement
comprehensive and coordinated programs of rehabilitation for
handicapped individuals which will maximize their employability,
independence and integration into the work place and the community.
The Committee views [the Act] as a comprehensive set of programs
designed to meet the broad range of needs of individuals with
handicaps in becoming integrated into the community and in reaching
their highest level of achievement.
S. Rep. No. 388, 99th Cong., 2d Sess. 5 (1986)(emphasis added), as
quoted in Polkabla v. Commission for the Blind, 183 A.D.2d 575, 576,
583 N.Y.S.2d 464, 465 (N.Y. App. Div.1st Dept. 1992).
As currently stated in the preamble, the purpose of the
Rehabilitation Act is to:
[E]mpower individuals with disabilities to maximize employment,
economic self-sufficiency, independence, and inclusion and
integration into society, through ... comprehensive and coordinated
state-of-the-art programs of vocational rehabilitation.
29 U.S.C. § 701(b)(1)(A)(emphasis added).
This current statutory language, which was added in 1992,
strengthens the standard, as it now requires the VR agency to maximize
an individual's economic self-sufficiency. Presumably, this means that
if an individual with a disability has the requisite ability, and has
the option of either obtaining a bachelor's degree and becoming a
paralegal or going to law school to become an attorney, the VR system
should approve the goal of becoming an attorney, because the attorney
position would more likely "maximize economic self-sufficiency."
However, to date, the courts which have addressed the issue have not
picked up on this new requirement to maximize economic
self-sufficiency.
Similar to, but stronger than, the standard announced when the
Rehabilitation Act was first enacted, the purpose of Title I of the
Act is to assist states in operating effective VR systems designed to:
[P]rovide [VR] services for individuals with disabilities,
consistent with their strengths, resources, priorities, concerns,
abilities, capabilities, interests, and informed choice, so that
such individuals may prepare for and engage in gainful employment.
29 U.S.C. § 720(a)(2)(B)(emphasis added).
In keeping with the dual obligations of the VR system to maximize
employment and ensure that the employment goal is consistent with a
person's interests and capabilities, post-employment services are
available to assist an individual to advance in employment. 34 C.F.R.
§ 361.5(b)(37). As noted above, this obligation applies when "the
employment is no longer consistent with the individual's strengths,
resources, priorities, concerns, abilities, capabilities, and
interests." Id., Note. This requirement can have no meaning if the
obligation of the VR agency ceases when an individual merely becomes
employed full-time.
Therefore, whatever can be said about the requirement to "maximize
employment," the obligations placed on the VR system are no less than
as stated by the court in Cook: the VR system has not met its
responsibility when an individual is capable of being employed at "any
job."
C. Rehabilitation Services Administration Policy Directive
Consistent with the increased statutory obligations placed on
state VR agencies, on August 19, 1997, the federal Rehabilitation
Services Administration (RSA) issued a Policy Directive, RSA-PD-97-04.
This directive requires state VR agencies to approve vocational goals
and the services to meet these goals to enable persons with
disabilities to maximize their employment potential. It represents a
dramatic shift in RSA policy.
The August 1997 Policy Directive concerns the "employment goal"
for an individual with a disability. It rescinds a 1980 policy and
describes the standard for determining an employment goal under Title
I. RSA's 1980 policy, 1505-PQ-100-A, identified "suitable employment"
as the standard for determining an appropriate vocational goal for an
individual with a disability. In that policy and in an earlier, 1978
policy (1505-PQ-100), RSA described "suitable employment" as
"reasonable good entry level work an individual can satisfactorily
perform."
The 1997 policy was, in part, a response to the fact that many
state VR agencies would not approve the training and other services
needed to allow a person to maximize employment potential. RSA's clear
change in policy is best expressed in the following quote from the
August 1997 Policy Directive:
The guidance provided through this Policy Directive is intended to
correct the misperception that achievement of an employment goal
under Title I of the Act can be equated with becoming employed at
any job. As indicated above, the State VR Services program is not
intended solely to place individuals with disabilities in
entry-level jobs, but rather to assist eligible individuals to
obtain employment that is appropriate given their unique strengths,
resources, priorities, concerns, abilities, and capabilities. The
extent to which State units should assist eligible individuals to
advance in their careers through the provision of VR services
depends upon whether the individual has achieved employment that is
consistent with this standard (emphasis added).
This directive clarifies that cost or the extent of VR services an
individual may need to achieve a particular employment goal should not
be considered in identifying the goal in the IPE. The new directive
also clarifies that a person who is currently employed will, in
appropriate cases, be eligible for VR services to allow for "career
advancement" or "upward mobility."
The Policy Directive emphasizes that the state VR agency must
still determine whether the individual's career choice is consistent
with his or her vocational aptitude. In an effort to meet the
maximization of employment requirements, however, state agencies are
encouraged to make these determinations through a comprehensive
assessment (such as a trial placement in a real work setting) or by
establishing short-term objectives in the IPE (such as a trial
semester in college). In many cases, these trial work or educational
placements should be accompanied by the availability of AT as a means
of overcoming a disability-related deficit.
D. Court Decisions
What have the courts had to say about the obligations of the VR
system? Several courts have applied the maximization standard to fund
VR services which a VR agency had initially denied. However, as time
has gone on, the decisions have become decidedly more mixed.
In Buchanan v. Ives, 793 F.Supp. 361 (D. Me. 1991), the parties
agreed that applying a "cost efficiency analysis" to the determination
of an individual's goals and needs would violate the Act. The court
held that a "cost efficiency analysis" cannot be the major determinant
to deny funding of services. The court noted that the intent of
Congress, in adding the maximization language, was:
[T]o establish a program which would provide services to assist
clients in achieving their highest level of achievement or a goal
which is consistent with their maximum capacities and abilities.
Id. at 365.
Accordingly, the court ruled that the goal of "maximizing
employability" cannot be equated with the ability to do any job. It
held that Title I requires a highly individualized analysis of the
individual's goals and, within reason (considering the economy and
market potential), services to enable the client to reach the highest
possible level of achievement.
In Indiana Dept. of Human Services v. Firth, 590 N.E.2d 154 (Ind.
Ct. of App., First Dist. 1992), the issue was the individual's
eligibility for VR services while attending law school. He did not
apply for VR services until after he started attending law school. The
VR agency found the person's deafness was not a substantial impediment
to employment, as he had the present capacity to work as a writer.
On appeal, the court ruled for the plaintiff and held that in
interpreting "capacities and abilities" the Act requires an analysis
of potential, not current capabilities, particularly in light of the
maximization requirement. Notwithstanding the individual's present
writing abilities, the court cited the need for VR-funded interpreter
services for him to become a lawyer.
In Polkabla v. Commission for the Blind, 183 A.D.2d 575, 583
N.Y.S. 2d 464 (N.Y. App. Div. 1st Dept. 1992), the court held that
Title I requires services to enable a blind paralegal to reach the
highest achievable vocational goal, college and law school, and not
merely "suitable employment." The fact that the individual initially
requested and was approved for paralegal training was not considered
relevant to the current issue of her goal to become a lawyer. It
should be noted that the IPE may be amended to change the employment
goal. 29 U.S.C. § 722(b)(2)(E).
In Stevenson v. Dept. of Labor and Industry, 167 Pa.Cmwlth. 394,
648 A.2d 344 (Pa. Cmwlth. Ct. 1994), the court upheld the VR agency's
denial of funding for a master's degree. The VR agency had funded the
individual's bachelor's degree in accounting and she sought funding
for an MBA program. The VR agency believed that the federal VR laws
did not give it the authority to fund the master's level degree. The
court agreed, but relied on the old RSA policy memorandum which was
overturned by the 1997 RSA Policy Directive referred to above.
However, at the time of the decision, the 1986 maximization standard
referred to above was in effect. Nevertheless, the court made the
following observation:
It would be unreasonable and impractical to require that the
"highest level of education achievable" be granted in every case of
providing an individual with rehabilitation services. Rather, the
goal of attaining suitable employment is a highly individualized
determination which is to be made on a case-by-case basis.
Id.
, 648 A.2d 347.
In Chirico v. Office of Voc. and Educ. Services, 211 A.D.2d 258,
627 N.Y.S.2d 815 (N.Y. App. Div. 3rd Dept. 1995), the individual
sought funding for a voice-activated computer for job-related
paperwork at home to enable him to reach his highest level of
achievement. The court held that attainment of a position as a
guidance counselor by working two to four extra hours per day at home,
six days a week, was not his full potential. The court noted that
without the requested AT, the individual's ability to consider
advancement was severely compromised.
In Romano v. Office of Voc. and Educ. Services, 223 A.D.2d 829,
636 N.Y.S.2d 179 (N.Y. App. Div. 3rd Dept. 1996), the court held that
funding for a Masters in Social Work degree, prior to entry into the
plaintiff's chosen profession, was not required to enable the
individual to reach the agreed upon goal of social work in therapeutic
counseling. The court specifically reasoned:
In providing the empowerment necessary for petitioner to ultimately
achieve maximum employment as generally provided for by the stated
purpose of the Rehabilitation Act, there is no requirement that
[the state VR agency] sponsor every possible credential desired by
petitioner.
Id.
, 223 A.D.2d at 830. The court also pointed out that the individual's
disability did not preclude advancement in her chosen profession.
Therefore, according to the court, the achievement of her IPE goal
empowered her to ultimately reach higher levels.
In Murphy v. Voc. and Educ. Services, 92 N.Y.2d 477, 683 N.Y.S.2d
139 (N.Y. Ct. of Appeals 1998), New York's highest court declined to
order the state's VR agency to fund law school education because the
individual has been assisted in gaining access to employment in the
agreed-upon field of legal services, to the point of being employable
competitively with nondisabled persons." Id., 92 N.Y.2d at 487. The
court stated that the maximization standard is met when "the recipient
is aided to the point, level and degree that allows the opportunity
for personal attainment of maximum employment." Id. at 481 (emphasis
added). The "goal is to empower eligible individuals with the
opportunity to access their maximum employment, not to provide
individuals with idealized personal preferences for actual optimal
employment." Id. In reaching this decision, however, the court does
not discuss the 1997 RSA Policy Directive, referred to above.
In Berg v. Florida Department of Labor, 163 F.3d 1251 (11th Cir.
1998), the court ruled against the plaintiff. The primary focus of the
case was whether Florida's VR agency discriminated on the basis of
disability, in violation of Section 504 of the Rehabilitation Act of
1973, when denying funding for law school. However, the court also
looked at the maximization language in Title I of the Rehabilitation
Act. The court stated that "the purpose of 'maximiz[ing] employment'
does not refer to obtaining some sort of premium employment." Id. at
1256. The court's decision does not refer to the 1997 RSA Policy
Directive and, in looking at the Act's stated purposes, ignores the
requirement that "meaningful" employment be consistent with the
client's abilities and capabilities.
When looking at the cases which have declined to follow the
individual's request for further VR assistance, a few things stand
out. First, a number of the courts criticized the individual for
either starting the program before seeking VR assistance or for
seeking to amend the VR plan to obtain more services than initially
requested. The courts which approved an individual's request for
additional services did not seem bothered by this conduct.
Second, the courts seemed reluctant to give the maximization
language its full effect. For example, the court in Stevenson called
it "unreasonable and impractical" to fund the highest level of
achievement for which an individual was capable. The courts seem to
read into the VR laws a requirement to conserve resources by limiting
services, rather than pushing for a move to an Order of Selection,
which is how the VR laws are meant to deal with insufficient resources
to fully meet the needs of all eligible individuals.
Third, none of the decisions declining additional services discuss
the 1997 RSA Policy Directive and none of them have considered the
revolution in informed choice created by Rehab '98. A fair reading of
these requirements is that the individual's choice of an employment
goal, while not without any review by the VR agency, should be
approved if it is within the client's capability and it is likely to
lead to a successful employment outcome. This is what the court in
Buchanan referred to as consideration of the economy and market
potential. In other words, the VR agency should approve the goal if it
is one which the individual is capable of achieving and is one which
is likely to lead to employment. The availability of resources should
not be part of the analysis. We will have to wait to see if the courts
will give full effect to the VR laws as currently written or will
continue to hesitate to approve funding for advanced degrees.
VII. Comparable Services Requirement
A. Basic Requirements
VR agencies are considered the payer of last resort for many
services. This means they will not pay for a service if a similar
benefit is available through some other agency or program. 29 U.S.C. §
721(a)(8). For example, if an applicant qualifies for personal
assistance services through Medicaid, the VR agency will not provide
those services. By contrast, the VR agency cannot deny payment for
college tuition because an individual could obtain student loans.
Student loans, which must be repaid, are not similar benefits. RSA
Policy Directive, RSA-PD-92-02 (11/21/91). Additionally, comparable
benefits do not include awards and scholarships based on merit. 29
U.S.C. § 721(a)(8)(A)(ii).
A person does not have to exhaust similar benefits in the
following circumstances:
1. If consideration of the similar benefit would interrupt or
delay:
a. The progress of an individual toward achieving the employment
outcome;
b. An immediate job placement; or
c. Services to an individual at extreme medical risk; or
2. If diagnostic services, VR counseling, referral to other
services, job placement or rehabilitation technology (i.e., AT) is
involved.
Id.
§ 721(a)(8)(A)(i); 34 C.F.R. § 361.54(b) and (c).
What if a potential funding source, such as Medicaid, is refusing
to pay for an augmentative communication device (ACD), which is needed
for the person to meet the employment objective and the person cannot
proceed while waiting for the device? Rehab '98 attempts to give
practical guidance on how the VR agency is to proceed. States must
develop a comprehensive plan involving all of the public agencies
providing what could be considered VR services, including the state's
Medicaid agency, public colleges and the workforce investment system,
to identify who will be responsible for providing what services. 29
U.S.C. § 721(a)(8)(B).
The plan must ensure the coordination and timely delivery of
services. All public agencies in the state remain responsible for
providing services mandated by other state laws or policy, or federal
laws. If another agency refuses to fulfill its obligations, the VR
agency must provide the services, but may seek reimbursement from that
agency. Id. § 721(a)(8)(C)(ii). Additionally, the IPE must now list
all services to be provided to meet the employment goal, whether or
not they are the responsibility of the VR agency. It must then
identify the services the VR agency is responsible for providing, any
comparable benefits the individual is responsible for applying for or
securing, and the responsibilities of any agencies to provide
comparable benefits. Id. § 722(b)(3)(E).
Therefore, the bottom line is, if another agency is refusing to
provide a service that is within its area of responsibility, the
individual does not have to wait until that dispute is resolved before
obtaining the service. In the above example, the IPE would list an ACD
as a service to be provided and indicate that it would be provided by
Medicaid, as a comparable benefit. If Medicaid then refused to provide
the ACD, the VR agency would be responsible for obtaining the device,
pending resolution with Medicaid.
B. Defaulted Student Loans
Many individuals with disabilities may have attempted college
either before or after they became disabled. If prior college attempts
were unsuccessful, the student may have defaulted on student loans.
When the loans are secured by the federal government, the individual
will not be eligible for further financial assistance, such as grants,
for college until the prior loans are no longer in default. What if
the individual now seeks to return to college, with VR support, and
does not have the financial ability to get the loan out of default?
Must the VR agency consider, as a comparable benefit, the value of any
grants for which the individual would have been eligible, and reduce
its support to the individual by that amount?
1. Effect of Defaulted Student Loans on VR Funding for
College
VR agencies may fund higher education, if needed to meet an
employment goal. However, the VR agency cannot use Title I funds
"unless maximum efforts have been made to secure grant assistance, in
whole or in part, from other sources to pay for such" higher
education. Id. § 723(a)(3); 34 C.F.R. § 361.48(a)(6)(emphasis added).
The RSA has issued a Policy Directive to reconcile the requirement to
use "maximum efforts" to secure outside grant assistance and the
problem for individuals with defaulted student loans, where that
assistance is unavailable. RSA Policy Directive, RSA-PD-92-02
(11/21/91).
RSA's Policy Directive provides that if an individual with the
financial means to do so fails to repay a loan, the VR agency may
determine that the financial assistance for which the student is
ineligible is, in any event, "available" to that person. Accordingly,
the VR agency would deduct from the amount of assistance it will
provide the value of the grants for which the student would have been
eligible. On the other hand, when a student with limited financial
means cannot make repayment arrangements with the lender, the VR
agency may conclude that "maximum efforts" have been made and full VR
assistance would be appropriate. When confronted with this question,
VR counselors must make individualized determinations, based on all of
the circumstances involved. Id.
2. Forgiveness of Student Loans
Under the federal guaranteed student loan program, there are
provisions for discharging a student loan, if a person becomes
"totally and permanently disabled." 20 U.S.C. § 1087(a). To be
considered "totally and permanently disabled," the individual must be
"unable to work and earn money or attend school because of an injury
or illness that is expected to continue indefinitely or result in
death." 34 C.F.R. §§ 685.102(a)(3) and 682.200.
Upon receipt of "acceptable documentation" that the borrower has
become totally and permanently disabled, the U.S. Department of
Education will discharge the obligation of the borrower, and any
endorser, to make any further payments on the loan. Id. §
685.212(b)(1). A loan will not be discharged if the condition existed
at the time the individual applied for the loan, unless the condition
"substantially deteriorated" after the loan was made which resulted in
the individual becoming totally and permanently disabled. Id. §
685.212(b)(2).
Under prior regulations, if an individual who had a loan
discharged because of disability applied for a subsequent loan, the
individual had to agree to repay the prior loan which had been
discharged. Federal Register, pp. 60327-60328, 12/12/92. This
provision has been eliminated. However, the individual must obtain a
certificate from a doctor that he or she is now able to engage in
"substantial gainful activity." 34 C.F.R. § 682.201(a)(5)(i)(A). In
other words, the individual must certify that his or her impairment is
not so severe as to qualify the person for SSDI or SSI. The individual
must also sign a statement that the new loan cannot be canceled in the
future based on any impairment present at the time the loan was made,
unless the impairment "substantially deteriorates." Id. §
682.201(a)(5)(i)(B).
3. Repayment of Defaulted Student Loans
If an individual with a disability is not eligible to have a
student loan forgiven, the law makes it relatively easy to develop a
repayment plan which will take the loan out of default. Each guaranty
agency under the federal student loan program must establish a program
which allows a borrower with defaulted loans to renew eligibility for
all federal financial assistance. The borrower must make six
consecutive monthly payments. The guaranty agency cannot demand from a
borrower a monthly payment amount that is "more than is reasonable and
affordable based upon the borrower's total financial circumstances." A
borrower may only obtain the benefit of this provision once. 20 U.S.C.
§ 1078-6(b)(emphasis added).
The payments must be voluntary and on-time. "On-time" means
payments are made within 15 days of the scheduled due date. "Voluntary
payments" "do not include payments obtained by income tax offset,
garnishment, or income or asset execution." 34 C.F.R. § 685.102(b).
VIII. Purchase of AT for Special Education Students in Transition: Who
Pays?
What responsibility does a VR agency have to an individual with a
disability who is still in school? Many VR agencies are unwilling to
get involved with students until their right to an appropriate special
education is over, citing the comparable benefits requirement. Where
AT is involved, this can be a significant problem. Schools do not
normally consider AT devices purchased to ensure an appropriate
education to be the student's property. See Federal Register, p.
12540, 3/12/99 (comments to the 1999 federal special education
regulations). If the AT device wdll also be essential for college or
employment, significant delays will result if the VR process does not
begin until after a student leaves school. It also makes little fiscal
sense for a school to provide AT, merely to be surrendered upon
graduation with the student then seeking another device from the VR
agency.
May the VR agency simply refuse to get involved until the student
graduates or ages out of the school system? To attempt to answer this
question, we will first look at what the school system's
responsibilities are under the special education laws. We will then
look at the VR system's responsibilities, and, finally, we will
examine how the two systems interact with each other.
A. Transition Services under the Individuals with Disabilities
Education Act
The Individuals with Disabilities Education Act (IDEA), 20 U.S.C.
§§ 1400 et seq., requires that no later than age 14 school districts
include in each student's individualized education program (IEP) a
transition plan to aid in the student's move to adult life. 34 C.F.R.
§ 300.347(b). Beginning at age 14, the IEP must include the transition
service needs related to the child's course of study in school, such
as "participation in advanced-placement courses or a vocational
education program." 20 U.S.C. § 1414(d)(1)(A)(vii)(I). Beginning at
16, or younger if appropriate, actual transition services are to
begin, including identifying the responsibilities of agencies other
than the schools to provide services. Id. § 1414(d)(1)(A)(vii)(II).
Transition services are defined as a coordinated set of activities
for a student, designed within an outcome-oriented process, that
promotes movement from school to post-school activities. The areas of
adult living to be considered include preparation for postsecondary
education, vocational training, integrated employment (including
supported employment), continuing and adult education, adult services,
independent living, and community participation. Id. § 1401(30).
Services are to be based on the individual student's needs, taking
into account the student's preferences and interests. The specific
services to be offered include: (1) instruction, (2) related services,
(3) community experiences, (4) development of employment and other
post-school adult living objectives, and (5) if appropriate,
acquisition of daily living skills and a functional vocational
evaluation. Id. As part of the transition plan, schools must identify
appropriate adult service providers and foster linkages with those
agencies. 34 C.F.R. § 300.347(b)(2). The schools are expected to
become familiar with "the post-school opportunities and services
available for students with disabilities in their communities." House
Report No. 101-544, 1990 U.S. Code Cong. & Admin. News p. 1733.
If an IEP meeting is to consider transition services for a
student, the school must invite the student and a representative of
any other agency that is likely to be responsible for providing or
paying for transition services. If the student does not attend, the
school must take other steps to ensure that the student's preferences
and interests are considered. If an invited representative does not
attend, the school must take other steps to obtain the participation
of that agency in the planning of any transition services. 34 C.F.R. §
300.344(b).
It is clear that when transition planning was added to IDEA in
1990, VR agencies, and other public agencies with responsibilities for
students, were intended to be involved both in the planning process
with schools and in the actual provision of services. The legislative
history states that the statement of needed transition services
"should include a commitment by any participating agency (i.e., the
State or local rehabilitation agency)" to meet any financial
responsibility it may have in the provision of transition services.
House Report No. 101-544, p. 11, 1990 U.S. Code Cong. & Admin. News,
p. 1733 (emphasis added).
VR agencies are also specifically referred to in the IDEA
regulations. The definition of rehabilitation counseling includes
services provided by the VR agency. 34 C.F.R. § 300.24(b)(11). The
IDEA definition of AT services includes coordinating other services
with AT devices "such as those associated with existing education and
rehabilitation plans and programs." 20 U.S.C. § 1401(2)(D)(emphasis
added). The IDEA regulations also note that nothing in the transition
services requirements relieves any participating agency, "including a
State [VR] agency," of the responsibility to provide or pay for any
transition service that the agency would otherwise provide. 34 C.F.R.
§ 300.348(b).
Amendments to IDEA in 1997 strengthened the obligations of other
public agencies to provide services to students while they are still
in school. All states must now have interagency agreements to ensure
that all public agencies responsible for providing services that are
also considered special education services, fulfill their
responsibilities. The financial responsibility of these public
agencies must precede that of the school. If an agency does not
fulfill its obligation, the school must provide the needed services,
but has the right to seek reimbursement from the public agency. The
agreement must also specify how the various agencies will cooperate to
ensure the timely and appropriate delivery of services to the
students. 20 U.S.C. § 1412(a)(12).
B. Transition Obligations Under the Rehabilitation Act
During the same time that changes were being made to IDEA, there
were also changes being made to the VR laws concerning the role of VR
agencies in the transition process. Based on 1992 changes to the VR
laws, the VR regulations now require the State VR Plan to develop
policies to facilitate a student's transition from the special
education system to the VR system. The VR regulations contemplate the
development of an IPE by the VR system, for students eligible for VR
services, before the student leaves the school setting. 34 C.F.R. §
361.22(a)(1).
However, the legislative history to the 1992 VR laws states that
schools remain responsible for ensuring a free appropriate public
education to students during the transition years. S. Rep. No. 357,
102d Cong., 2d. Sess., 33 (1992), as quoted at 34 C.F.R. § 361.22,
Note. This seems to contradict the requirements of IDEA, discussed
above. However, the VR law's intent is to ensure that "there is no gap
in services between the education system and the vocational
rehabilitation system." Id.
The laws governing VR agencies were again amended in 1998. Among
other changes, the law more clearly identifies the responsibilities of
the VR system to special education students, and, hopefully, removes
the apparent contradiction. The State VR Plan must now include
procedures to facilitate the transition of students with disabilities
from the special education system to the VR system, including: (1)
consultation and assistance to the educational agencies in preparing
the transition plan in the special education IEP; and (2) defining the
relative roles and financial responsibilities of the special education
and VR systems to provide services. 29 U.S.C. § 721(a)(11)(D). As
noted above, available VR services now also include funding transition
services to students with disabilities to facilitate an employment
outcome, when appropriate. Id. § 723(a)(15).
Subject to the State VR Plan, the VR agency is required to provide
services to special education students to facilitate achievement of
the employment outcome as spelled out in the IPE. Congressional
Record-House, H6693, July 29, 1998. "However, State [VR] agencies
should not interpret the 'interagency agreement' provisions as
shifting the obligation for paying for specific transition services
normally provided by those agencies to local school districts. State
[VR] agencies still have that responsibility." Id.
C. Reading the Special Education and VR Laws Together
What is the effect of all of these requirements for the student
who needs an AT device? First, the VR agency may participate in the
transition planning meetings with the school. Second, if the
graduating student clearly will need the AT device to prepare for
employment, a reasonable approach would be to have the VR agency
purchase the device in the first instance or purchase it from the
school when the student graduates. The need for the device would
continue to be reflected in the special education IEP, with reference
to the VR agency as payer (or purchaser) of the existing device upon
the student's graduation. The AT device would also appear in the IPE,
which must be developed by the VR agency before the child finishes
school.
Nothing prohibits the VR agency from purchasing the AT outright
for the student while still in special education or from purchasing it
from the school when the student graduates. The IDEA regulations
envision other agencies providing services to students in transition,
including VR agencies. 34 C.F.R. § 300.348. The VR regulations require
that the State VR Plan specify the financial responsibility of the
various state agencies serving the student. Id. § 361.22(a)(2)(v).
IX. AT for the College Student: Who Pays?
A similar problem arises when a VR agency refuses to provide
services for a college student, arguing that the college's
responsibility under the Americans with Disabilities Act (ADA) or
Section 504 is a comparable benefit. See "Several Vocational Agencies
Stop Paying For Auxiliary Aids," Section 504 Compliance Handbook,
Supp. No. 213, p. 1 (Thompson Publishing Group, August 1996).
A. Obligations of Colleges and Universities
Section 504 of the Rehabilitation Act of 1973 prohibits
discrimination on the basis of disability in any program or activity
receiving federal funds. 29 U.S.C. § 794. Since virtually every
college and university in the country receives federal funds, they are
bound to comply with the terms of the law. Ironically, Section 504
comes from the same law, the Rehabilitation Act of 1973, which covers
VR services.
The ADA prohibits discrimination on the basis of disability
whether or not a covered entity receives federal funds. Title II of
the ADA covers programs operated by state and local governments.
Public colleges and universities are covered by Title II. 42 U.S.C. §
12131. Title III of the ADA covers private entities which are
considered places of public accommodation. Private colleges and
universities are specifically included in the list of examples of
places of public accommodation. Id. § 12181(7)(J). Therefore, all
colleges and universities in the country will be covered by either
Section 504, the ADA, or both.
There are regulations under Section 504 which specifically deal
with colleges and universities. The ADA does not have a similar set of
requirements. However, the requirements of the ADA will be virtually
identical to those under Section 504. Therefore, this booklet will
briefly review the Section 504 regulations. We will then discuss how
the responsibilities of colleges interact with the responsibilities of
the VR system.
The regulations under Section 504 set out a general standard for
colleges and universities. No qualified student with a disability
shall, on the basis of disability, "be excluded from participation in,
be denied the benefits of, or otherwise be subjected to
discrimination." 34 C.F.R. §§ 104.42 and 104.43(a). Colleges and
universities are also required to operate their programs and
activities in the most integrated setting appropriate. Id. §
104.43(d).
Colleges must make modifications to their academic requirements,
such as modifying the length of time to complete a degree,
substituting courses, and adapting the manner in which courses are
conducted. There is an exception to the obligation to modify course
requirements if the college can show that the academic requirement is
essential to the student's program of instruction or to a directly
related licensing requirement. Id. § 104.44(a).
All course examinations or other procedures for evaluating student
performance must be modified so that they measure the student's
achievement rather than the effects of the disability. Id. §
104.44(c). Additionally, colleges cannot impose rules, such as
prohibiting tape recorders or service dogs, which limit the
participation of people with disabilities in the program. Id. §
104.44(b).
Colleges must provide auxiliary aids to enable students with
impaired sensory, manual or speaking skills to participate in the
program. The requirement to provide auxiliary aids is the broadest
statement of the obligation for colleges and universities to provide
AT. Auxiliary aids can include taped texts, interpreters, readers in
libraries, adapted classroom equipment and other similar services and
actions. Personal services (including readers for personal study) or
individually prescribed devices are not included. Id. § 104.44(d).
B. Obligations of the Vocational Rehabilitation System
The U.S. Department of Education enforces both Title I of the
Rehabilitation Act, governing VR agencies, and Title V, which includes
Section 504. In fact, the Education Department wrote both the
regulations covering VR agencies and those covering Section 504.
The regulatory history to the Section 504 regulations governing
colleges indicates the role the Department of Education envisioned for
colleges in providing auxiliary aids. The Department stressed that
colleges could normally meet their obligation:
[B]y assisting students in using existing resources for auxiliary
aids such as state vocational rehabilitation agencies and private
charitable organizations. Indeed, the Department anticipates that
the bulk of auxiliary aids will be paid for by state and private
agencies, not by colleges or universities.
Id.
Part 104, App. A, note 31 (emphasis added). The purpose of these
comments was to highlight that the provision of auxiliary aids would
not be an undue burden on the colleges. See U.S. v. Board of Trustees
for U. of Ala., 908 F.2d 740, 745 (11th Cir. 1990).
Addressing this question relative to Section 504, the Seventh
Circuit, in Jones v. Illinois Dept. of Rehabilitation Services, 689
F.2d 724 (7th Cir. 1982), held that the state VR agency has the
primary responsibility to provide auxiliary aids in the form of
interpreter services. In dicta, the court also noted its approval of
the district court's opinion that the similar benefits requirement did
not even apply to colleges or universities. Id. at note 7. Likewise,
in Schornstein v. N.J. Div. of Voc. Rehab., 519 F.Supp. 773 (D.N.J.
1981), aff'd, 688 F.2d 824 (3rd Cir. 1982), the court held that the VR
agency's policy of refusing to provide interpreter services to college
students violated Title I of the Rehabilitation Act.
Rehab '98 clarifies, to some extent, the relative responsibilities
of colleges and VR agencies in these situations. As noted above, the
IPE not only is supposed to list the services that the VR agency will
be providing, but also those services which will be provided by other
agencies as comparable benefits. 29 U.S.C. § 722(b)(3)(E). This way
everyone will know, in advance, who is responsible for what services.
Additionally, public colleges and universities must be included in
developing a comprehensive plan to ensure the coordination and timely
delivery of services. Id. § 721(a)(8)(C)(emphasis added). They remain
responsible for providing services mandated by other state laws or
policy, or federal laws, such as the ADA and Section 504. Id. §
721(a)(8)(C)(i). If they refuse to provide services, the VR agency
must provide the services, but may seek reimbursement from the college
or university. Id. § 721(a)(8)(C)(ii). "However, State [VR] agencies
should not interpret these 'interagency agreement' provisions as
shifting the obligation for paying for specific [VR] services to
colleges and universities. State [VR] agencies still have that
responsibility." Congressional Record-House, H6692, July 29, 1998.
C. Reading the Two Sets of Requirements Together
How does all of this apply to a college student needing AT? Let's
say a college student who is deaf is funded by the VR system to attend
college to study to become an accountant. Everyone agrees that for
certain courses, the only way the student will be successful is to
have real time captioning during classes. As noted above, AT
(rehabilitation technology) is exempt from the comparable benefit
requirement. Therefore, one approach would be to say that since real
time captioning is AT, it is the sole responsibility of the VR agency
to provide this service. However, this could certainly be seen as
"pushing the envelope." Therefore, the state, in its VR Plan, could
decide to indicate that the VR agency and public colleges will share
this cost. In such a case, the IPE will indicate that the real time
captioning will be the joint responsibility of the VR agency and
college. See 29 U.S.C. § 722(b)(3)(E). If the college does not provide
its agreed upon support, the VR agency must still ensure that the real
time captioning is provided to the student, but may seek reimbursement
from the college for its costs.
What about a student who is blind and uses a computer with voice
output to read? The college would have an independent obligation,
under Section 504, to ensure that its programs are accessible.
Therefore, it would be responsible for ensuring that the library's
resources are available to the student. It could meet its obligation
by providing its card catalogue on computer with a dedicated computer
with voice output to allow the student to have access to the materials
in the library.
What if this same student was working on a term paper and needed
to read a book located in the library? Would the college have to
provide a reader or otherwise make that book accessible to the student
for individual research? As noted above, the regulations under Section
504 exempt colleges from providing auxiliary aids and services for
personal use or study. 34 C.F.R. § 104.44(d)(2). The relevant ADA
regulations also exempt personal devices and services. 28 C.F.R. §§
35.135 and 36.306. One could argue that reading a book to write a term
paper is for personal study, even though the book is located in the
library. Under this analysis, the college would not be required to
provide this service to the student. If a college is under no
obligation to provide assistance in such circumstances, there is no
comparable benefit and it becomes the sole responsibility of the VR
agency. Another way to resolve this question would be to have the VR
agency provide a hand held scanner for the student and for the college
to assure that there would be a location within the library for the
student to use the device.
X. Hearing and Appeal Rights
Anyone seeking or receiving VR services who is dissatisfied with a
decision by the VR agency has a right to appeal. Rehab '98 makes some
significant changes in the appeal process. Each state must establish
procedures governing appeals, which must include the right to
mediation and an administrative hearing before an impartial hearing
officer. 29 U.S.C. § 722(c)(1). The VR agency must notify individuals,
in writing, of their right to mediation, an impartial hearing and the
availability of the Client Assistance Program (CAP) at the following
times: at the application; when the IPE is developed; and upon the
reduction, suspension or cessation of VR services. Id. § 722(c)(2)(A).
CAP is also funded under the Rehabilitation Act. Id. § 732(a).
Therefore, there is a CAP office in every state. CAP is designed to
provide information to individuals concerning their rights in the VR
process and to provide advocacy services in resolving disputes,
including representation at impartial hearings. Individuals who do not
understand the proposed IPE, have questions about their rights under
the Rehabilitation Act, or receive an adverse decision from the VR
agency, should consider contacting the appropriate CAP office for
assistance.
Rehab '98 added mediation as an available means of resolving
disputes between consumers and the VR agency. It must be offered to
resolve disputes, at a minimum, whenever an impartial hearing is
requested. Participation must be voluntary and involvement in
mediation cannot be used to deny or delay the right to an impartial
hearing. The state bears the costs of mediation. All discussions that
occur during mediation are confidential and cannot be used at any
subsequent hearing. Id. § 722(c)(4).
At an impartial hearing, the individual has the right to be
represented by an attorney or other advocate. Both the individual and
the agency can present evidence and cross examine witnesses. 34 C.F.R.
§ 361.57(b)(3). The hearing decision is final and must be implemented,
unless appealed. Id. § 361.57(b)(3).
Rehab '98 also makes significant changes in the availability of a
second level of administrative review. Under prior law, the VR agency
could review a hearing decision on its own motion. This is no longer
true. A state may establish a procedure for a second level of
administrative review. The review officer must be the chief official
of the designated state VR agency or an official from the office of
the Governor. If the state does establish a second level of
administrative review, either party may appeal within 20 days of the
hearing officer's decision. The review officer cannot overturn a
hearing decision unless, based on clear and convincing evidence, the
decision is "clearly erroneous" based on an approved State VR Plan,
federal law or state law or policy that is consistent with federal
law. 29 U.S.C. § 722(c)(5)(D)-(F).
Rehab '98 also adds a private right of action under Title I. Id. §
722(c)(5)(J). Therefore, either party may appeal a final
administrative decision to state or federal court. However, pending
review in court, the final administrative decision shall be
implemented. 29 U.S.C. § 722(c)(5)(I). The right to bring a court
action under Title I of the Rehabilitation Act bears a striking
resemblance to the language under IDEA. 20 U.S.C. § 1415. As a result,
the case law interpreting the IDEA right to bring court cases will
most likely be applicable when interpreting these provisions. For
example, the courts have held that one cannot bypass the
administrative hearing process under IDEA and bring a case directly to
court. See Riley v. Ambach, 668 F.2d 635 (2nd Cir. 1981); Thomas v.
East Baton Rouge Parish Sch. Bd., 29 Individuals with Disabilities Law
Reporter 954 (M.D. La. 1998). It is likely that courts will also
require exhaustion of the administrative process before a court action
can be started under Title I of the Rehabilitation Act.
Finally, because the statute is silent on the issue, it can be
presumed there is no right to attorneys' fees. See Smith v. Robinson,
468 U.S. 992 (1984). However, under IDEA, a parent could maintain an
action under 42 U.S.C. § 1983, with its attendant attorneys' fees
provision, where the issue was denial of access to the procedures
under IDEA. See Quackenbush v. Johnson City School Dist., 716 F.2d 141
(2nd Cir. 1983), cert. denied, 465 U.S. 1071 (1984). Presumably, this
same reasoning will apply to Title I of the Rehabilitation Act. In
Petsinger v. Office of Vocational Rehabilitation, No. Civ.A. 96-4433,
1997 WL 634505, 11 National Disability Law Reporter ¶ 60 (E.D. Pa.
1997), the court held just that. The court granted summary judgement
to the plaintiff under 42 U.S.C. § 1983 because the VR agency had
denied the plaintiff the right to a fair hearing. The court found that
the VR agency's "arbitrary withdrawal of Petsinger's appeal deprived
him of a fair hearing as required by statute." Accordingly, the court
also permitted the attorneys to request fees under 42 U.S.C. § 1988.
Although the case was decided before the enactment of Rehab '98, there
is nothing in either the court's decision or in Rehab '98 which would
affect the court's decision.
XI. Conclusion
The VR system can be a crucial resource for AT for people with
disabilities who are planning to enter the workforce. Over the years,
Congress has continued to strengthen the role of consumers in the VR
process and enhance the availability of AT.
Congress and the federal RSA have also, over time, strengthened
the mandate of state VR agencies to provide a range of services to
maximize employability and economic self-sufficiency. Although the
reading of the maximization requirements by the courts to date has
yielded mixed results, the language of the law, regulations and policy
directives continues to support a reading that favors maximization of
employment in individual cases. This suggests that the handful of
court decisions that have ruled otherwise may be attributable to the
individual facts presented.
Overall, Title I of the Rehabilitation Act provides a very
comprehensive set of services, including AT, that can be funded to
prepare individuals for the world of work. Hopefully, this booklet
will provide the reader with a good reference tool for accessing those
services.
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