INTRODUCTION

    On August 7, 1998, President Clinton signed the Workforce Investment Act (WIA)of 1998. The WIA includes the Rehabilitation Act Amendments of 1998, reauthorizing the Rehabilitation Act through 2003. Although Congress considered merging the vocational rehabilitation (VR) system into the WIA, VR remains a separate program. But, the vocational training opportunities of the WIA’s state workforce investment system are clearly intended to be available to persons with disabilities. See § 2(b)(1)(A) (references are to the uncodified version of the Rehabilitation Act).

    The VR provisions are found in Title I of the Rehabilitation Act. They govern New York’s two VR agencies: the Office of Vocational and Educational Services for Individuals with Disabilities (VESID) and the Commission for the Blind and Visually Handicapped (CBVH). Although Title I’s core provisions remain the same, there are some significant changes. This article will review the major changes to Title I which directly affect VESID and CBVH. It will not attempt to analyze the WIA or its new planning mandates. For a more thorough review of the core requirements of Title I and how they can be used to fund assistive technology (AT), see our March 1996 issue of IMPACT or our article on funding of AT through Medicaid, special education programs and VR agencies, which appeared in the May-June 1997 issue of Clearinghouse Review. Both articles can be found on our Web site at www.nls.org.

BASIC ELIGIBILITY CRITERIA

    The Rehabilitation Act Amendments of 1998 (Rehab ‘98) change the designation of individual with a "severe" or "most severe" disability to individual with a "significant" or "most significant" disability. § 7(21). Recipients of Social Security Disability Insurance or Supplemental Security Income (SSI) are presumed to be eligible for VR (i.e., VESID or CBVH) services, as individuals with a significant disability, provided they intend to achieve an employment outcome.
§ 102(a)(3).

    Potential employment outcomes are also expanded. 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. 29 U.S.C. § 706(5); 34 C.F.R. § 361.5(b)(15). Rehab ‘98 adds self-employment, telecommuting and business ownership as successful employment outcomes. § 7(11)(C).

    VESID and CBVH must assist individuals in their exercise of "informed choice" throughout the VR process. The consumer’s choice is key in selection of the assessment, an employment outcome, services to be provided and the entity which provides them, the method for procuring services and the setting in which they will be provided. § 102(d)(1) - (5). VESID or CBVH must still approve the individualized plan for employment (IPE), but the individual decides the level of involvement, if any, of the VESID or CBVH counselor in developing the IPE.
§ 102(b)(1)(A) & (2)(C).

    The stated reason for the consumer’s expanded role 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 ... ." § 102(d)(3).

    The Individualized Written Rehabilitation Plan (IWRP) has been replaced by the Individualized Plan for Employment (IPE). § 102(b). This plan, which will be developed by the consumer, with assistance from the VESID or CBVH counselor, is to be set forth on a form provided by the VR agency. § 102(b)(2)(A).

    The IPE should enable the individual to achieve the agreed upon employment objectives and must include [§102(b)(3)]:

1.  The specific employment outcome (i.e., vocational goal) 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 assistive technology (AT) and personal assistance services.

3.  The time line for initiating services and achieving the employment outcome.

4.  The 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.  For individuals with the most significant disabilities who are expected to need supported employment, the extended services to be provided.

8.  The projected need for post employment services.

    The IPE must be reviewed at least annually and amended if there are substantive changes in the employment outcome, the VR services to be provided or the service providers. Changes will not take effect until agreed to by the individual and the VR counselor. § 102(b)(2)(E).

    Rehab ‘98 makes no notable changes in the requirement to maximize employment when providing VR services. See 29 U.S.C. § 701(b)(1). (See discussion of Murphy decision, pp. 152- 153, below, regarding how VESID’s obligation to maximize employment may be limited by the facts of an individual case.) Nor does it amend the opportunity for a state to establish financial need criteria. See 34 C.F.R. § 361.54.

    There are, however, some modifications in the availability of services, including the provisions for AT. The following list contains both new services available and enhanced descriptions of existing VR services [§103(a)]:

    VESID and CBVH are the payers of last resort for many services. They will not pay for a service, in many cases, 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 (i.e., home health care services) through Medicaid, VESID will not provide those services. By contrast, the VR agency cannot deny payment for college tuition because an individual could obtain loans. Student loans, which must be repaid, are not similar benefits. U.S. Dept. of Educ., Rehab. Services Admin., Policy Directive RSA-PD-92-02 (11/21/91).

    Additionally, a person does not have to exhaust similar benefits in the following circumstances
[§ 101(a)(8); 34 C.F.R. § 361.54(b) and (c)]:

    (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. [emphasis added]

    States must develop a comprehensive plan with all of the public agencies providing what could be considered VR services, to identify responsibility for providing services. These public agencies include Medicaid, public colleges and the workforce investment system. § 101(a)(8). The plan must ensure the coordination and timely delivery of services. All public agencies remain responsible for providing services mandated by other state or federal laws. If another agency refuses to fulfill its obligations, however, VESID or CBVH must provide the services but may seek reimbursement from that agency. § 101(a)(8).

    VESID and CBVH may sometimes balk at getting involved with high school students until their right to an appropriate special education is over, citing the comparable benefits requirement. Recent amendments to both the federal special education laws and Title I of the Rehabilitation Act make it clear that both VESID and CBVH have a role to play when the special education student is in the "transition" years.

    The federal Individuals with Disabilities Education Act (IDEA) 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. § 300.346(b)(1). The plan must identify appropriate adult service providers, such as VESID or CBVH, and foster linkages with those agencies.

    The federal VR regulations require the State VR Plan to include policies to facilitate the transition from the special education system to the VR system, including the development of an IWRP (now IPE) before the student leaves the school setting. 34 C.F.R. § 361.22(a)(1). The legislative history to the Rehabilitation Act Amendments of 1992 [Pub. L. 102-569, 106 Stat. 4346] states that school districts 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. However, the law's intent is to ensure that "there is no gap in services between the education system and the vocational rehabilitation system." Id.

    Rehab ‘98 further clarifies VESID’s and CBVH’s responsibilities. The State Plan must now include procedures to facilitate the transition of students from the special education system to the VR system, including [§ 101(a)(11)(D):

• Consultation and assistance to the educational agencies in preparing the transition plan in the IEP.

• Defining the relative roles and financial responsibilities of the special education and VR systems to provide services.

    Subject to the State Plan, VESID and CBVH are required to provide services to "transitioning" 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.

    What happens when VESID or CBVH refuse to provide AT for a college student, arguing that the college's responsibility under the ADA or section 504 of the Rehabilitation Act 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).

    The regulatory history to the section 504 regulations governing colleges indicates that the Department of Education envisioned that colleges could normally meet their obligation to provide auxiliary aids "by 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." 34 C.F.R. 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).

    The regulations under section 504 and the ADA exempt colleges from providing auxiliary aids and services for personal use or study. 34 C.F.R. § 104.44(d)(2); 28 C.F.R. §§ 35.135 and 36.306. Therefore, if a college is under no obligation to provide AT in such circumstances, there is no comparable benefit. Finally, as noted earlier, AT (i.e., rehabilitation technology) is exempt from the comparable benefit requirement.

    Rehab ‘98 clarifies, to some extent, the relative responsibilities in these situations. Public colleges and universities must be included in developing the comprehensive plan to ensure the coordination and timely delivery of services. Section 101(a)(8). They remain responsible for providing services mandated by other state or federal laws, such as the ADA and section 504. § 101(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. § 101(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.

    Anyone seeking or receiving VR services who is dissatisfied with a decision by VESID or CBVH has a right to appeal. Rehab ‘98 makes some significant changes in the appeals process.

    Mediation is a new means of resolving disputes between consumers and VESID or CBVH. At a minimum, it must be offered to resolve disputes 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. VESID or CBVH bears the costs of mediation. All discussions that occur during mediation are confidential and cannot be used at any subsequent hearing.

    VESID and CBVH must establish procedures governing appeals, which must include the right to mediation and an administrative hearing before an impartial hearing officer. § 102(c)(1). VESID and CBVH must notify individuals, in writing, of their right to mediation: when the person applies; when the IPE is developed; and upon the reduction, suspension or cessation of VR services.
§ 102(c)(2)(A).

    The individual has the right to be represented at the hearing by an attorney or other advocate. Both the individual and the agency can present evidence and cross examine witnesses. The hearing decision is final and must be implemented unless appealed. 34 C.F.R. § 361.57(b)(3). As noted below, VESID and CBVH no longer have the right to review and reverse a hearing decision unless it is appealed. No appeals from a hearing decision will be allowed unless VESID or CBVH puts a procedure in place allowing those appeals.

    Rehab ‘98 also makes significant changes in the availability of a second level of administrative review. A State may establish a procedure for a second level of administrative review, i.e., for review of the hearing decision. The review officer must be the chief official of the designated state agency or an official from the office of the Governor. 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 Plan, federal law or State law or policy that is consistent with federal law.

    The practical effect of this change is that neither VESID nor CBVH has the authority, under the new law, to overturn the decision of a hearing officer unless it puts into place new procedures that comply with the law. As this is written, neither agency has established a new system for review of hearing officer decisions.

    Rehab ‘98 adds a private right of action (i.e., the right to court appeal) under Title I, which bears striking resemblance to the language under IDEA, allowing for court appeals in special education cases. 20 U.S.C. § 1415. As a result, all of the case law interpreting IDEA should be applicable when interpreting these provisions. Either party may appeal to state or federal court. However, pending review in court, the final administrative decision shall be implemented. Finally, because the statute is silent on the issue, it can be presumed there is no right to attorneys’ fees when a plaintiff wins his or her appeal. See Smith v. Robinson, 468 U.S. 992 (1984).

Title I of the Rehabilitation Act continues to be a major source of funding for AT and other services to allow persons with disabilities to achieve independence through employment. If you have specific questions about the 1998 amendments to Title I or how they interact with recent amendments to the federal special education laws, you may call the AT Advocacy Project

    On November 18, 1998, New York’s highest state court held that the Office of Vocational and Educational Services for Individuals with Disabilities (VESID) is not required to reimburse the plaintiff for certain costs related to her now-completed law school education. Murphy v. Office of Vocational and Educational Services to Individuals with Disabilities (NY Ct. of Appeals 11/18/98).

   For persons with disabilities and their advocates, the Murphy decision raises concerns. However, there is language in the decision that should limit its application to future cases. Moreover, we know that as a practical matter both VESID and the Commission for the Blind and Visually Handicapped (CBVH) have provided funding for individuals to attend law school and other post-graduate programs, on a case-by-case basis.

[For copies of the Murphy decision or Policy Directive 97-04, please contact the AT Advocacy Project. You can also obtain a copy of the directive on the vocational rehabilitation section of our Web site, www.nls.org.]

• Jim Sheldon, Supervising Attorney
• Marge Gustas, Staff Paralegal & Coordinator of Pro Bono Project
• Bill Mastroleo, Staff Attorney & Web Master
• Trish Weber, Staff Paralegal
• Diane Dustin, Project Secretary

Marge is the only person who works full-time on the project. Jim, Bill, Trish and Diane also work part-time with the National AT Advocacy Project.

    Do you have decisions of interest relating to assistive technology in the following areas? Medicaid, Medicare, Vocational Rehab, VA, Special Education, Physically Handicapped Children’s Program, Private Insurance, etc.
    Other advocates can benefit from your experience. If you have fair hearing decisions or are involved in or have completed litigation in these areas, we want to know about it.