A State VR agency must either provide the full range of available services to all eligible individuals, as appropriate to their needs, or go to an order of selection. 34 C.F.R. § 361.36(a). If a State does not use an order of selection, it must have, in fact: (1) provided assessments to all applicants and the full range of services, as appropriate, to all eligible individuals; (2) made referral forms widely available throughout the State and conducted outreach efforts; and (3) not delayed, through waiting lists or other means, eligibility determinations, IPE development or the provision of services. Id. § 361.36(b)(1).

        In order of selection States, where not all potentially eligible individuals will receive VR services, Rehab ‘98 makes 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. 29 U.S.C. § 721(a)(5)(D) and (20). Accordingly, the proposed regulations make mandatory what had been discretionary. The VR system must assist eligible individuals who would not otherwise be served to secure needed employment assistance from other entities, especially participants in the statewide workforce investment system. 34 C.F.R. § 361.37(a)(1). Moreover, the State must report on the number of eligible individuals who did not meet order of selection criteria, but did receive information and referral services. Id. §361.37(c).

        The Individualized Written Rehabilitation Plan is now know as the Individualized Plan for Employment (IPE). 29 U.S.C. § 722(b). Before the IPE is developed, there must be an assessment, if needed, to determine the employment goal and needed services. It can cover educational, psychological, psychiatric, vocational, personal, social and medical factors that affect employment and rehabilitation needs. Id. § 705(2)(B). It may also include a referral for rehabilitation technology services, “to assess and develop the capacities of the individual to perform in a work environment.” Id. § 705(2)(C).

        The IPE must list the specific services to be provided, including, as appropriate, AT devices and services, personal assistant services, and “training in the management of those services.” 34 C.F.R. § 361.46(a)(2)(i). The IPE must be reviewed at least annually and amended if there are 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. 29 U.S.C. § 722(b)(2)(E); 34 C.F.R. § 361.45(d)(7).

        The proposed regulations move from the list of available services the requirement that the State Plan describe the “manner in which the broad range of rehabilitation technology services will be provided,” including training and the provision of AT. Current 34 C.F.R. § 361.48(b). These requirements are then addressed in two other places. The comprehensive system of personnel development must include a requirement that VR agency staff receive training in, among other things, rehabilitation technology (which includes AT). 34 C.F.R. §361.18(d)(1)(i). The State Plan must also include strategies to implement its needs assessment, including how a broad range of AT services and devices will be provided “at each stage of the rehabilitation process and how those services and devices will be provided to individuals with disabilities on a statewide basis.” Id. § 361.29)(d)(1).

        The proposed regulations also modify current section 361.56 to better reflect “that the components of that section must be met before the [VR agency] can close the record of services for an individual who has achieved an employment outcome.” 65 Fed. Reg. 10629. To close a record of services, the individual would have to achieve the employment objective in the IPE and maintain the outcome for no less than 90 days. Also, the individual and VR counselor must agree that the employment outcome is satisfactory and that the individual is “performing well.” The VR agency must also notify the individual that post-employment services may be available even after the record is closed. 34 C.F.R. § 361.56(d). The comments note the importance of each of these factors to ensure that “the individual’s employment outcome is sufficiently stable and that the individual no longer requires VR services to maintain the employment.” 65 Fed. Reg. 10629.

        VR agencies are the payer of last resort for many services. This means they will not pay for a service, in many cases, if a similar benefit is available through some other provider. 29 U.S.C. § 721(a)(8). For example, if an applicant qualifies for personal assistance services through Medicaid, the VR agency will not pay for 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. U.S. Dept. of Educ., Rehab. Services Admin., Policy Directive RSA-PD-92-02 (11/21/91).

        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. 29 U.S.C. § 721(a)(8); 34 C.F.R. § 361.53(a) and (b) (emphasis added). Under the proposed regulations, if comparable benefits exist and are available at the time needed to ensure progress toward the employment goal, the State must use those services. However, if they exist but are not available to the individual when needed, the State must provide the services until the comparable benefits become available. Id. § 361.53(c).

        Rehab ‘98 requires States to develop a comprehensive plan with all public agencies providing what could be considered VR services, including Medicaid, public colleges and the workforce investment system, to identify responsibility for services. 29 U.S.C. § 721(a)(8). The plan must ensure coordination and timely delivery of services. “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. Also, the services which are exempt from the comparable services requirement (including AT) are also exempt from inclusion in the interagency plan. 34 C.F.R. §361.53(d)(3)(i) and (iv).

        All public agencies in the State remain responsible for providing services mandated by other State or Federal laws which are also considered VR services. If another agency refuses to fulfill its obligations, the VR agency must provide the services, but may seek reimbursement from that agency. Again, AT and the other exempt services are not included in this requirement. Id. § 361.53(e).

        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. § 300.346(b)(1). Schools must identify appropriate adult service providers and foster linkages with those agencies. Id.

        VR agencies were intended to be involved in the planning process with schools and in the actual provision of transition services. IDEA’s legislative history states that 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). Finally, the VR regulations also include a definition of transition services. They “must promote or facilitate the achievement of the employment outcome identified in the student’s [IPE].” 34 C.F.R. § 361.5(b)(53) (emphasis added). The IPE for a special education student must be developed in consideration of the student’s IEP and consistent with the State’s interagency agreement. Id. § 361.45(d)(8).

        The intent of Rehab ‘98 is to ensure a “timely and efficient transition” from the special education system to the VR system. 65 Fed. Reg. 10623. The State VR Plan must include a formal interagency agreement with the State educational agency that, at a minimum, provides for: (1) consultation and assistance to the educational agencies in preparing the transition plan in the IEP; (2) transition planning by VR agency personnel and education agency staff to actually develop the transition IEP; and (3) defining the relative roles and financial responsibilities of the special education and VR systems to provide services. 34 C.F.R. § 361.22(b). “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.” Congressional Record–House, H6693, July 29, 1998.

        The comments note the VR system is authorized and encouraged to assist school districts in transition planning “without determining whether the student is eligible under the VR program or developing an IPE.” 65 Fed. Reg. 10624. The comments also emphasize that the transition services provisions in the Rehabilitation Act are not intended to shift responsibility from the education system to the VR system. The role of the VR system is “primarily one of planning for the student’s years after leaving school.” Id. 10623. Nevertheless, VR agencies must determine eligibility for services and develop an IPE for eligible students before they leave the school setting. 34 C.F.R. § 361.22(a). Unfortunately, the proposed regulations remove the note, quoting the legislative history to the 1992 amendments, that the intent is to ensure “there is no gap in services between the education system and the vocational rehabilitation system.” Current 34 C.F.R. § 361.22, Note, quoting S. Rep. No. 357, 102d Cong. 2d. Sess., 33 (1992).

        The proposed regulations add the following to the list of services that are exempt from the financial needs test: (1) interpreter services for individuals who are deaf or hard of hearing; (2) reader services for individuals who are blind; and (3) personal assistance services. Id. § 361.54(b)(3)(i). The rationale is the added services enable an individual to communicate or perform daily living functions while receiving VR services. An individual would not be eligible for VR assistance solely to receive this type of service. 65 Fed. Reg. 10629.

        The comments also note this change would not affect a service provider’s obligations to provide accommodations or auxiliary aids and services under the Americans with Disabilities Act or Section 504 or the Rehabilitation Act. 65 Fed. Reg. 10629. This is consistent with the requirement noted in the comparable benefits section, above, that public agencies in the State remain responsible for fulfilling their responsibilities under other State or Federal Laws. 29 U.S.C. § 721(a)(8). However, it is a departure from the regulatory history to the Section 504 regulations for colleges and universities, which note that colleges and universities were not expected to pay for the bulk of auxiliary aids and services. 34 C.F.R. Part 104, App. A, note 31.

        SSI and SSDI recipients would be exempt from a State’s needs test. 34 C.F.R. § 361.54(b)(3)((ii). The comments note that SSI recipients have already been determined to fall below federally-established income and resource levels and that SSDI recipients, based on their inability to perform substantial gainful activity, have limited ability to contribute to the costs of services. The comments also note that exempting these recipients from the financial needs test is in keeping with the “chief goal behind the practice of referring these individuals to the VR program: Enabling individuals to become gainfully employed and to no longer require Social Security benefits.” To require SSDI and SSI recipients to contribute to the cost of services would act as a disincentive “to pursue gainful employment through the VR program.” The comments note that States are reimbursed for the costs of VR services to these recipients after they are engaged in substantial gainful activity. 65 Fed. Reg. 10629.

        Anyone dissatisfied with a VR agency’s decision has a right to appeal. Rehab ‘98 added mediation as a means of resolving disputes. 29 U.S.C. § 722(c)(4). It must be offered, at a minimum, whenever an impartial hearing is requested. Participation must be voluntary and mediation cannot be used to deny or delay the right to a hearing. Under the proposed regulations, an individual must be given a hearing within 45 days of the request if the dispute has not been resolved through informal resolution procedures or mediation. 34 C.F.R. § 361.57(e)(1).

        The comments indicate that the right to bring an attorney or advocate to mediation or a hearing should be interpreted broadly. The individual “has full discretion to choose an attorney, a guardian, family member, a friend, or other person to serve as his or her advocate.” 65 Fed. Reg. 10630. At a hearing 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(e)(2) and (e)(4).

        Rehab ‘98 also makes changes in the availability of a second level of administrative review and adds a private right of action. 29 U.S.C. §§ 722(c)(5)(D) - (F) and (J). Either party may appeal the final agency decision to State or Federal court. However, pending court review, the final administrative decision shall be implemented. 34 C.F.R. § 361.57(h). Because the statute and regulations are silent on the issue, it can be presumed there is no right to attorneys’ fees. See Smith v. Robinson, 468 U.S. 992 (1984).

        The proposed regulations implementing Rehab’ 98 reaffirm the role of VR services in preparing people with disabilities to return to work. They maintain the importance of AT throughout the VR process and seek to ensure that employment services are available to people with disabilities from the other providers of services in the State.

        In William T. v. William R. Taylor, M.D., et al. (N.D. Ga. 3/1/00), the District Court ordered Georgia’s Medicaid program to cover augmentative and alternative communication devices, concluding they meet the durable medical equipment, prosthetic devices and speech-language pathology definitions. The court also orders the parties to either negotiate a settlement on AAC approval criteria, or be prepared to litigate those issues. Congratulations to co-counsel Naomi Walker of the Georgia Protection and Advocacy Program and Lew Golinker of the AT Law Center in Ithaca, New York.

        In Kindron v. DeBuono (N.Y.A.D. 4^th Dept. 11/12/99), the court ordered Medicaid to fund a swimming pool lift to allow a 15 year old girl to engage in therapeutic activities at home. The court noted that “hydrotherapy was prescribed ... not primarily to provide recreation or exercise, but to slow the debilitating progression of her disease [i.e., spinal muscle atrophy].” The state has sought leave to appeal to the state Court of Appeals, New York’s highest court. Attorney, Bill Mastroleo, of New York’s Protection and Advocacy Program represents the petitioner.

        In Matter of Charles M. (N.Y. 3/27/00), a Medicare administrative law judge (ALJ) has ordered a managed care plan to fund a Dynamite 3100 augmentative and alternative communication device for a man diagnosed with amyotrophic lateral sclerosis (ALS), finding that this device meets the requirements as durable medical equipment and a prosthetic device. This is the seventh ALJ decision identified in which an AAC device has been approved for Medicare funding. Congratulations to the AT Advocacy Project’s attorney, Ron Hager, who represented the claimant under New York’s Protection and Advocacy for Individual Rights (PAIR) program.

[For copies of the 44-page William T. decision, the one-page Kindron decision, the Charles M. decision, or any of the briefs, contact Diane Dustin at 716-847-0655 ext. 218, or email Jim Sheldon (jsheldon@nls.org).]

Update on The National Assistive Technology Resource Library

The AT Advocacy Project will provide nationwide services to PAAT projects including technical assistance to advocates wanting to access funding for assistive technology for individuals with disabilities.